DAMODARAM SANJIVAYYA NATIONAL LAW UNIVERSITY

VISAKHAPATNAM, ANDHRA PRADESH

SUBJECT

Law of Torts

PROJECT TITLE

DISCHARGE OF TORTS

NAME OF THE FACULTY

PROF. DR.P. SRI DEVI

B.Sc., M.L., Ph.D., DEAN. ACADEMIC AFFAIRS & RESEARCH

NAME OF THE CANDIDATE:

ALLU.SAI SARAYU

ROLL NUMBER: 2018007

SEMESTER – 1

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 ABSTRACT

SUBJECT : LAW OF TORTS

Research topic: DISCHARGE OF TORTS

If a tort is committed a right of action arises in favour of the injured person. It comes to an end by
one of the following methods .Thus the extinction of liability is known as "Discharge of Torts" .It
is a process by which tort cease to exist and a wrongdoer is

Not liable for wrong committed by him.

1. Death of one of the Parties

2. By Judgment recovered

3. By Limitation

4. By Waiver

5. By Release

6. By Accord and Satisfaction.

1. Death of one of the Parties:

Death of one of the Parties , it means Previously death extinguished all the liabilities of the person.
But after the Law Reforms Act 1934, it was decided that death extinguished only the liability for
personal torts like defamation, assault etc. All the other causes of action survive to the legal
representatives of the deceased.

2. By Judgment recovered :

If an action is brought before the court seeking redress for the tort committed and the judgment is
given , the liability for that particular tort comes to an end .If the plaintiff fails ,he cannot go in
for another legal proceedings

3. By Limitation :

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According to law, for every enforcement of person's right a certain period is fixed .This is done
on the basis that law will not help dormant persons. Moreover, a person will not be able to establish
a defence due to death of witness or loss of evidence, after certain time.

4. By Waiver :

By Waiver of Torts, for the same wrong ,if there are more than one remedy and the plaintiff selects
one remedy and leaves the others ,he is said to have waived the other remedies .He cannot pursue
the remedies ,which he had given up. Waiver may be either express or implied. Waiving of torts
means that only the right to recover damages for the torts is waived and not the whole of tort is
waived.

5. By Accord and Satisfaction :

If the plantiff and the defendant agree to settle the liability by valuable consideration, the tort is
discharged. This agreement is called "accord" and the consideration is called "satisfaction .When
the satisfaction is performed the right of action comes to an end.

6. By Release :

By release, the injured party releases the wrongdoer by a document, then the liability is
discharged. In accord and satisfaction there is valuable consideration, but in this method there is
no consideration.

7. Acquiescence :

When a person who is entitled to enforce a right neglects to do so for a very long time, it is
impliedly inferred that he has waived or abandoned his right.His right of action is taken away by
such undue delay.

Name: ALLU .SAI SARAYU

2018007 Sec: A

Subject: Law of torts

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 TABLE OF CONTENTS

Synopsis………………………………………………………………………6

Introduction……………………………………………………………………7

Waiver by election……………………………………………………………7

Accord and satisfaction………………………………………………………8

Release………………………………………………………………………13

Death of parties………………………………………………………………15

Acquiescence………………………………………………………………....16

Judgment recovered………………………………………………………….18

Statutes of limitations………………………………………………………..20

Conclusion……………………………………………………………………22

Bibliography………………………………………………………………......24

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 ACKNOWLEDGEMENT

I want to express my gratitude to respected Sri Devi madam, who gave me this very good
opportunity to research on Discharge of torts, which helped me in studying various aspects about
waiver of torts and in turn gave me a good knowledge on what conditions the discharge of torts
is granted.

Secondly, I would like to thank the team DSNLU, who provided me assistance through various
online resources to accomplish this project.

ALLU.SAI SARAYU

2018007, Section – A

1st Semester.

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SYNOPSIS

OBJECTIVE/AIMS OF STUDY:

The main Aim of the study is to know about the extension of liability that is “DISCHARGE OF
TORTS”

SCOPE OF STUDY:

The scope of the study is DISCHARGE OF TORTS

REVIEW OF LITERATURE

To collect information regarding the project books, articles have been referred.

RESEARCH METHODOLOGY:

The research done is completely doctrinal research .In this method no field work is done.

It is also called theoretical way of study.

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 DISCHARGE OF TORTS

Introduction:

In discharge of tort, the circumstances are such the liability exists but remedy does not exist.
The meaning of discharge of tort is coming to an end of tort. It is a process by which tort cease
to exist and a wrongdoer is not liable for wrong committed by him.1

Following are the modes for discharge of tort:

 Waiver by election.

 Accord and satisfaction

 Release

 Death of parties

 Acquiescence

 Judgment recovered

 Statutes of limitations

Waiver by election:

Where a man has more than one remedy for a tort, and he elects to pursue one of them, giving up
the others, the other remedies are said to have been waived. He cannot pursue them if he fails in
the one elected. Such waiver may be explicit or implicit

It is considered as explicit: When the person entitled to anything expressly and in terms gives it
up, in which case it nearly resembles release.

It is considered as implicit: When the person entitled to anything does or acquiesces in

something else which is inconsistent with that to which he is so entitled. The phrase“ Waive the
tort” does not mean that the tort itself is waived; it is only the right to recover damages for the
tort committed, that is waived.

1
Giliker, P 2014, Ch 31 Discharge of torts. in M Jones (ed.), Clerk & Lindsell on Torts. 21st edn, The Common Law
Library, Sweet and Maxwell, London, pp. 2167-2189..

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There are certain cases in which a person injured by a tort may at his election bring an action of
tort, or waive the tort and sue the wrong doer on a contract implied fictitiously by law. Thus if
the defendant obtains the plaintiff money had and received

Similarly if a man is wrongfully deprived of his goods, which are afterwards sold, he may bring
action for damages for the tort, or he may sue for the price received by the defendant.2

United Australia v. Barclays Bank Ltd.:

The house of lords drew a distinction between elections of remedies and electionof substantiate
rights. In case where the election is between two remedies, it is not complete merely filing a suit
to invoke one remedy until judgment is obtained whereas in a case where there is an election
between two inconsistent substantiate rights, the election may be complete at an earlier state.

For example , if the plaintiff sold his goods to the defendant because of fraud , he may either
affirm the contract and sue for price or he may treat the contract as void and sue for damages of
fraud. This is an example of election between two inconsistent substantive rights and if the
plaintiff insists a suit for price of goods affirming the contract, the election will be complete.
But when the plaintiff has to elect between suing for unjust enrichment arising from tort, and
suing for damages for tort, it is a case of first category, i.e of election between two remedies. In
the case of United Australia ltd, The House of lords confirmed the principle that where the same
facts gave rise in law to two causes of action, one for money had and received and to a separate
cause of action for damages in tort against another defendant, judgment recovered against the
first defendant did not prevent the plaintiff from suing the other defendant in separate action, but
to the extent the judgment was fully satisfied this constituted satisfaction pro tanto of the claim
for damages in the case of the action against second defendant3.

2
Rodgers v. Maw(1846) 15M&W 444(448)

3
Thorappa v. Umedmalji,(1923) 25 Bom LR 604.

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The case of United Australia Ltd.. was followed by the privy council in Mahesan v Malaysia
Government officers Co operative Housing society ltd . It was held in this case that the common
law the principle of a bribed agent has, as against both the bribed agent and the briber, The
alternative remedies of

1. Claiming the amount of the bribe as money had and received

2. Claiming damages for fraud in the amount of the actual loss sustained in consequence of
entering into the transaction in respect of which the bribe had been given, but he could
not recover both and had to elect between the alternative remedies although he was ot
required to make the election until the time of entry of judgment in his favour on one or
other of the alternative causes of action.

There have been plethora of cases that have discussed the doctrine of Waiver. Some of the
important ones are.

Jaswantsingh Mathurasingh & Anr. v. Ahmedabad Municipal Corporation & Ors.– In this
case, the court said that everyone has a right to waive an advantage or protection which seeks to
give him/her. For e.g. In case of a Tenant-Owner dispute, if a notice is issued and no
representation is made by either the owner, tenant or a sub-tenant, it would amount to waiver of
the opportunity and such person cannot be permitted to turn around at a later stage.

Krishna Bahadur v. M/s. Purna Theatre & Ors.– This case made a differentiation between the
principle of Estoppel and the principle of Waiver. The court said that “the difference between the
two is that whereas estoppel is not a cause of action; it is a rule of evidence; waiver is contractual
and may constitute a cause of action; it is an agreement between the parties and a party fully
knowing of its rights has agreed not to assert a right for a consideration”.

The court also held that:

“A right can be waived by the party for whose benefit certain requirements or conditions had
been provided for by a statute subject to the condition that no public interest is involved therein.
Whenever waiver is pleaded it is for the party pleading the same to show that an agreement
waiving the right in consideration of some compromise came into being. Statutory light,
however, may also be waived by his conduct.”

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Municipal Corporation of Greater Bombay v. Dr. Hakimwadi Tenants' Association & Ors. –
This case said that even though Waiver and Estoppel are two different concepts, still the essence
of a Waiver is an estoppel and without Estoppel, there cannot be any Waiver. The court also said
“Estoppel and waiver are questions of conduct and must necessarily be determined on the facts
of each case”.

Estoppel :a "bar or impediment raised by thelaw, which precludes a man from alleging or from
denying a certain fact or state of facts, in consequence of his previous allegation or denial or
conduct or admission, or in consequence of a final adjudication of the matter in a court of law"4

Doctrine of Waiver and Fundamental Rights in India:

Fundamental Rights are the most special of the rights in Indian Context. These rights though
sacrosanct are not absolute in nature. Our Constitution imposes various imposes various
reasonable restrictions upon the exercise of fundamental rights.

As stated above, we saw that a right can be waived subject to the condition that no public interest
is involved therein. However, the scope of the Doctrine of Waiver with respect to Fundamental
rights is a bit different.

It was discussed in the case of Basheshr Nath v. Income Tax commissioner. The Court said
that:

“Without finally expressing an opinion on this question we are not for the moment convinced
that this Doctrine has any relevancy in construing the fundamental rights conferred by Part III of
our Constitution. We think that the rights described as fundamental rights are a necessary
consequence of the declaration in the preamble that the people of India have solemnly resolved
to constitute India into a sovereign democratic republic and to secure to all its citizens justice,
social, economic and political; liberty, of thought, expression, belief, faith and worship; equality

4
According to Blacks law dictionary.

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of status and of opportunity. These fundamental rights have not been put in the Constitution
merely for the individual benefit though ultimately they come into operation in considering
individual rights. They have been put there as a matter of public policy and the ‘doctrine of
waiver’ can have no application to provisions of law which have been enacted as a matter of
Constitutional policy. Reference to some of the articles, inter alia, Articles 15(1) 20, 21, makes
the proposition quite plain. A citizen cannot get discrimination by telling the State 'You can
discriminate', or get convicted by waiving the protection given under Articles 20 and 21.”

We find that the primary objective of Fundamental Rights is based on Public Policy. Thus,
individuals are not allowed to waive off such fundamental rights. Also, it is the constitutional
mandate of the Courts to see that Fundamental Rights are enforced and guaranteed even if one
might wish to waive them

ACCORD AND SATISFACTION:

An accord is an agreement between two or more persons, one of whom has a right of action
against the other, that the latter shall render and the former accept some valuable consideration in
substitution for the right of action. Accord indicates the agreement and the satisfaction the
consideration which makes it operative, When the agreement is satisfaction and operates as a bar
to the right of action, An accord and satisfaction in favour of one joint tort feasor operates in
favour of them all when the injury is one and indivisible. It can then give rise to but one cause of
action, and consequently if satisfaction is accepted as full and complete as against one person, it
operates with respect to the entire cause of action.

Where damages only are to be recovered , accord and satisfaction is a good plea5

5
Blakes case(1606) 6 Rep 43b.

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For example action of libel, action under Lord Campbell’s Act actions for personal injuries6.
But when a person has agreed to accept a sum for personal injuries and subsequent damage not
within the contemplation of parties, when the agreement was made, arises, the original accord
and satisfaction will not prevent him from bringing an action for further injury7 .

Accord without satisfaction does not bar the right of action, but if what is accepted in
satisfaction is merely the promise and not the performance therefore the original cause of action
is discharged from the date of the promise . It is a matter of construction whether what was
accepted in satisfaction was the promise or its performance

2001 Brown v. Sparks,

Plaintiff had been charged with criminal assault. Assault charge was dismissed without trial. It
was genuine issue of fact as to whether that dismissal included an understanding on the viability
of any civil remedies and as such, it was improper for trial court to dismiss action on summary
judgment based on accord and satisfaction since factual issues existed.

1991 Kelly v. R.S. Jones & Assocs.,

Plaintiff accepted consideration paid in this wrongful death claim. Although Virginia law
requires that wrongful death cases be court approved, that requirement did not apply in this
instance since death occurred out of state.

1977 Wright v. Orlowski,

Accord and satisfaction is method of discharging contract or cause of action whereby parties
agree to give and accept something in settlement of claim or demand. Plaintiff signed covenant
not to sue insurance company for defendant and agreed to non-suit defendant. This was held to
be effective release.

1973 M. & B. Constr. Co. v. Mitchell,

Plaintiff accepted $1,000.00 check under protest. There was no accord and satisfaction.

6
Rideal v. Great western Ry.(18
7
Ellen v. Great wastren Ry. (1859) I F & F 706.

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1968 Cotman v. Whitehead,

Release of one joint tortfeasor releases other when based on accord and satisfaction.

1965 Katzenberger v. Bryan,

Defendant was attorney hired by plaintiff to do title search. It was negligently done and as result,
plaintiff paid for land that seller did not actually own; plaintiff settled with seller in contract.
This accord and satisfaction did not bar plaintiff’s tort action against defendant.

1963 Atkins v. Boatwright,

Defendant sent reduced amount to plaintiff as payment in full. Plaintiff cashed check and noted
on check that it was accepted as partial payment only. No accord and satisfaction.

1946 Owen v. Wade,

Accord and satisfaction is method of discharging contract or settling cause of action in tort
whereby any unliquidated or disputed claim may be settled upon any terms or at any price agreed
upon by parties.

A civil action in tort and criminal proceedings for libel are distinct and different remedies. Any
adjustments of the criminal complaint would not operate as an accord and the satisfaction in the
criminal proceedings should also operate as any accord and satisfaction of the civil action.

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Release:

A release is the giving up or discharge of the right of the right of action which a man has or may
have against another man. But a release executed under a mistake or in ignorance of ones rights 8

Or obtained by fraud is not valid.

A covenant not to sue at all is equivalent to release and may be pleaded in bar9. A mere covenant
not sue one of two joint tort feasors does not operate as a release so as to discharge the other.

It is open to the injured party to release the wrong doer from liability for compensation.

According to English law, release of rights must be supported by consideration , or by formal

document signed, sealed and deliverd.

Liverpool & London S.P. & I Asson. ... vs M.V. Sea Success I & Anr on 20 November, 2003:

The appellant (Club) herein is an association incorporated under the laws of the United
Kingdom. It is a mutual association of ship owners. It offers insurance cover in respect of the
vessels entered with it for diverse third party risks associated with the operation and trading of
vessels. According to the appellant, no vessel operates without a Protection & Indemnity (P&I)
cover and the same has been made compulsory to allow a ship to enter major ports in India.

According to section 63, The Indian Succession act consideration is not necessary for release and
therefore it would be open to an injured party to release the wrong doer without any
consideration.

But a release executed under mistake

Hore vs Beacher, (1842) or in ignorance of one’s rights such as in the case of Phelps vs Amcott
(1869) or in the cases obtained by fraud (Hirschfield vs S.C Ry Co. (1876) it is not binding.

8
Phelps v. Amcott,(1869) 21 LT 167: Knapp v. Burnaby,(1608) 8 WR (Eng) 305.
9
Ford v. Beech(1848) 11 QB 852(871).

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Death of parties:

According to English Common law, a personal cause of action against a person came to an end
when is died is known a death of a party.

The rule was contained in the maxim “ Actio personal Morit ur cum Persona” which means that
personal cause of person dies with the person.

Death of wronged person - against whom the tort is committed

Death of wrong doer who has committed tort.

In case of death of wronged person the legal heir can claim damages from the defendant for
proprietary wrong i.e. tort against property I.e. trespass, nuisance, negligence, fraud, waste
etc. But for personal tort defendant cannot be sued. Even in case of death of the wrong doer the
legal heir of deceased are not liable for personal tort of wrongdoer. Personal torts are those torts,
which are affecting mind, and body of person e.g. assault, battery, false imprisonment,
defamation etc.

In case of personal tort legal heir of wrong doer are not liable but in case of proprietary torts
legal heirs are liable.

Balbir Singh Makoi vs. Sir Ganga Ram Hospital (2001) :

A complaint was filed against a surgeon, whose blunder resulted in the death of the complainants
son , while the complaint was still pending, the surgeon concerned died.

The National Commission applied the Rule “Actio Personalis Moritur Cum Persona” and held
that by the death of surgeon , the right of action has come to an end and the surgeons legal heirs
cannot be held liable for this case.

E.I Ltd vs Klaus Mittelbachert AIR 2002 Delhi 124 :

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A co pilot in airlines stayed in Hotel Oberoi Continental a five star hotel having a facility of
swimming pool . While driving his head hit on the bottom of swimming pool , which resulted in
serious head injuries , in the single judge decision the plaintiff was allowed Rs 50 lakh as
compensation, it was held that the plaintiffs suit abated on his death, and therefore his legal
representatives has no right to pursue the case and could not seek substitution in his case, The
earlier Single Judge decision granting compensation was reserved.

Exceptions:

The rule that cause of action came to an end with the death of either the parties did not apply to
an action under the law of contract, Contarctual obligations could be enforced by or against the
legal representatives of the parties of the contract

Section 37 and 40 of the Indian Contract Act also make a similar provision

The parties to a contract must either perform or offer to perform, their respective promises,
unless such performance is dispensed with or excused under the provisions of this act

Rose vs Ford:
A girl of 23 years was severely injured by an accident , caused by the negligence of the
defendant. Two days after the accident , her leg was imputed and four days after the accident, she
died, The father of the girl was entitled to claim compensation for the benefits of the estate of
the account of pain and suffering loss of leg and diminution in the expectation of her life

ACQUISCENCE:

Where a person who knows that he is entitled to enforce a right, neglects to do so for a length of
time, the other party may fairly infer that he has waived or abandoned his right. But to deprive a
man of his legal remedies there must be something more than mere delay.10

10
Uda begam v. Imam ud din(1875) ILR 1 All 82, 86.

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The common case of acquiescence is where a man, who has a charge or incumbrance upon
certain property, stands by and allows another to advance money on it or to expend money upon
it. Equity considers it to be the duty of such a person to be active and to state his adverse title,
and that it would be dishonest in him to remain willfully passive in order to profit by the mistake
which he might have prevented

Direct acquiescence takes away the right of action11

Power Control Appliances vs Sumeet Machines Pvt. Ltd on 8 February, 1994: "The learned

Single Judge, while disposing of the applications, has in the impugned judgment, accepted the
copyright with respect to operating instructions and recipe book, guarantee card and the outer
carton of the Sumeet kitchen mixes in the Power Control and Appliances Company represented
by the Sole Proprietrix Mrs. Madhuri Mathur, as well as the copyright in the Design Registration
No. 148246 for 'whipper blade' for which there is validity till April 5, 1994. He has also accepted
the plaintiffs' case that the trade marks in the name 'Sumeet' with the particular artistic design is
registered in the name of Sumeet Research and Holdings Limited. He has, however, declined to
grant any injunction, for in his opinion the doctrine of acquiescence and honest and concurrent
user will be attracted."

K.V Narayan vs S. Sharana Gowd and Anr august 1985:

His doctrine of acquiescence as a bar to relief does not apply where the party, committing the
wrong knows that he is doing that which he has no right to do. In relation to trespass therefore
the doctrine applies only to those cases where the trespasser is acting under a mistaken belief as
to his own rights and not where he deliberately infringes the rights of another. "If', said Lord
Cranworth L C., in Ramsden v. Dyson (1866) LR 1 HL 129 "a stranger begins to build on my
land supposing it to be his own, and I, perceiving his mistake, abstain from setting him right, and
leave him to persevere in his error, a Court of Equity will not allow me afterwards to assert my
title to the land 'on which he had, expended money on the supposition that the land was his
own...... If a stranger builds on my land knowing it to be mine, there is no principle of equity
which would prevent my claiming the land with the benefit of all the expenditure made on it.
There would be nothing in my conduct, active or passive, making it inequitable in me to assert

11
Kazi Mahamad v.Subramania Iyer,(1934)

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my legal rights". The doctrine of acquiescence does not arise where knowledge, of the title
exists, where the person entitled does nothing and allows the trespass to go on, but the trespasser
knows the title and facts as well as the person entitled

JUDGEMENT RECOVERED:

The cause of action against a wrong doer in respect of a wrong is extinguished by a judgment
obtained in a court of law. The judgment is a bar to the original cause of action, because it is
there by reduced to a certainty and the object of the suit attained so far as it can be at that stage,
and it would be useless and vexatious to subject the defendant to another suit for the purpose of
obtaining the same result. The person injured cannot bring a second action for the same wrong
even though it is subsequently found that the damage is much better than was anticipated when
the action was brought. If in an assault a person sustains a broken arm and a broken leg, he must
sue for both the injuries in the same action.

Order 2 of the Code of Civil Procedure12lays down that every suit shall include the whole of the
claim which the plaintiff is entitled to make in respect of, or intentionally relinquished any
portion of his claim he shall not afterwards sue in respect of the portion so omitted or
relinquished unless leave is obtained.

Two distinct causes of action, however, may arise out of the same facts against the same wrong
doer and in that event two separate actions may be brought. The plaintiff, a cab- driver, was held
entitled to recover damages for personal injuries received in a collision by defendant’s
negligence, though he had already recovered compensation in a previous action for the injury to
the cab.

12
Act v of 1908.

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Continuing injuries: Where the injury is of a continuing nature i.e. it is still in the course of being
committed, the bringing of an action and the recovery of damages for the preparation of the
original wrong do not prevent the injured party from bringing a fresh action for the continuance
of the injury. Dealing with continuing renders the doer of the act responsible and liable for the
continuance wrong through the Madras High Court has held that” it is of the very essence of a
continuous wrong that it must be an act which creates a continuing source of injury and thus
renders the doer of the act responsible and liable for the continuous of the injury. If the wrongful
act is complete then there no wrongful act continuing through damages resulting from the act
may continue. A distinction exists between the injury caused by a wrongful act and what may be
said to effect of injury. In cases in which damage is not of the essence of action, as in trespass, a
fresh cause of action arises de die in Diem and in cases in which damage is of the essence of the
action, as in nuisance successive action may from time to time be brought in respect of their
continuance.

Subsidence caused by working in coal mines- Lessees of coal under M’s land worked the mine
so as to cause a subsidence of the land and injury to houses thereon in 1886, For the injury thus
caused the lessees paid compenstation, They worked no more, but in 1882 a further subsidence
in an adjoining owner had left enough support under M’s land. It was held that the cause of
action in further subsidence did not arise till that subsidence occurred, and that M could maintain
an action for the injury thereby caused, although more than six years have passed since the last
working by the lessees13

Fateh Singh vs Jagannath baksh Singh:

In that case the plaintiff had sued the defendant for rent, and the defendant had pleaded
abatement and had adduced no in support of his plea, so that the plaintiff recovered judgment,
many years after the plaintiff sued the defendant for the rent subsequently accruing, and the
defendant sought to raise various defences. It was contended, and so held in the lower Courts,
that the matter was res judicata, and concluded in favour of the plaintiff. But the High Court held
that it did not follow because rent was due from the defendant in one year that it was necessarily

13
Darley Main Colliery Co v. Mitchell(1886) 11 App Cas 127

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due in later years; and this seems obvious, for the position of either of the parties might have
changed. Maulean C. J. said that it might be that on looking further into the matter some
particular issue might be found to have been previously decided, and then the principle of res
judicata might apply; but that as the matter stood it did not necessarily so appear. Banerji J., it is
true, made some observations upon those words ''heard and finally decided," which appeared in
the old Act and are in the present Code; and to these observations, couched in language not so
careful as it might have been, undue prominence has been given by the reporter in the summary
of the case which appears in the head note. But in the actual decision there is no conflict with the
established authorities.

Ganesh vs Syed Muned Ahmed and Ors.1998: 14

If a number of persons jointly participate in the commission of a tort, each is responsible, jointly
with each and all of the others, and also severally, for the whole amount of the damage caused by
the tort, irrespective of the extent of his participation'. That is to say, the person injured may sue
any one of them separately for the full amount of the loss; or he may sue all of them jointly in the
same action, and even in this latter case the judgment so obtained against all of them may be
executed in full against any one of them. If the tort feasors were independent or separate 'the
person damnified might sue them one by one and recover from one alone or from such as he
chose to execute judgment against, provided that he did not recover more than the greatest sum
awarded or, against any defendant, more than was awarded in the action against him'

Judgement by the court of law. If the matter is decided conclusively and finally by the competent
court then for the same cause of action, between the same parties the matter cannot be
repaginated again and further or fresh suit is debarred.

U/s.11 of civil procedure Code, 1908, Means thing once decided cannot be repaginated, more
than one action does not lie on the same cause of action. The doctrine of Res-Judicata rests upon
the principle that one should not be vexed twice for the same cause and there should be finality
of litigation. The object of the principle is to prevent endless litigation. It also prevents a new

14
https://indiankanoon.org/docfragment.com

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investigation so that the same person cannot be harassed again and again in various proceedings
upon the same cause of action.

It is based on the maxim 'memo debit bus velar pro in et edem causa means no man should be
vexed twice over the same cause of

STATUTES OF LIMITATION:

There is a distinction between wrongs which are actionable per se, and those which are
actionable only where the plaintiff can prove that he has suffered actual damage. The period of
limitation runs, in the first case, from the time when the wrongful act was committed , in the
second, from the time of the plaintiffs first sustaining actual injury.

In England , the limitation Act 1980 fixes the time during which actions of tort must be brought.
Section 14A of the Limitations Act 1980 will not apply to claims for negative declaratory
relieefs as to absence of liability in torts15

The periods within which suits can be brought in India courts against wrong doers for obtaining
redress are governed by the provisions of the limitation act 1963. In cases of continuing tort, a
fresh period of limitation begins to run as and when the tort or breach is committed. This is
governed by section 22 of the limitation act 1963. Similarly, in cases of medical negligence, it
has been held that cause of action arises on the date when the act of negligence is committed, and
if the effects of the negligence are latent, then either on the date when it is discovered or the date
when the plaintiff by the reasonable exercise of deligance , could have discovered. The limitation
will accordingly start to run. In cases of trespass, the Bombay high court has held that trespass
will continue as log as unlawful entry lasts, and the same being a continuing wrong, it will be
covered under Section22. The law prescribes limit within which an action must be brought for

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the wrong and if this prescribed period is over, expired, the right of action is barred and remedy
ceased to operate law helps those only that is diligent about their right. Delay defeat equity .Law
will not help to those who were sleeping over their right for pretty long time.

In England the limitation Act, 1939 as amended by law reform (limitation of actions etc.)
Act 1954, fixes time during which action of tort must be brought. On the other hand in India.
Indian limitation Act 1963, provides the prescribed period during which existing right can be
enforced in the court of law. It does not create nor define any cause of action the object of the
Limitation Act is to enable the parties to file suit within certain period and forbid them from
filing suit after period.

The object of the law of Limitation is to ensure private justice to suppress and perjury and to
quicken diligence and to prevent oppression.

Conclusion:

Discharge of torts is something where tort has been committed and the party is
exempted from the liability due to different factors.

Therefore it can be concluded that discharge of torts is like the tort coming to the
end , there is no proper remedy, Different conditions under which the tort
committed is been waived has been clearly explained, such as waiver by elections,
death parties, accord and satisfaction, release and acquiescence all these are the
different situation where the tort has been waived by the parties. And different
cases laws are been taken into consideration along with some landmark judgments
has been cited.

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BIBLOGRAPHY;

 Winfield on Torts.

 R.K. Kapoor on Law of Tort

 Salmond on Torts

 A M Chaudhry on Law of Torts.

 Law of Torts by Underhill.

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