30. It is quite clear that for the application of S. 10 (2), it is necessary to show inter alia that the Province of Bengal was subject to a liability in respect of an actionable wrong other than a breach of contract. A reference to any book on tort will show that the words used in Sub-section. (2) are commonly used to define a tort. A tort has been defined in Stroud’s Judicial Dictionary (2nd Edn., p. 2072) as a wrong independent of contract, and it is also so described in the Common Law Procedure Act, 1852 (15 and 16 vict., c. 76), in Halsbury’s Laws of England and in many text-books. The difference between “a wrong independent of contract” and “ a wrong other than a breach of contract” is merely verbal and has little significance.
A tort is also often referred to as “an actionable wrong” and the two expressions have been synonymously used by eminent writers including Sir Fredriek Pollock and Professor Burdick of America, who has designated his well-known book on the law of torts as “a concise treatise on civil liability for actionable wrongs to person and property”. Whether the expression can be taken to be a complete definition of a tort may be questioned, because as Addison has pointed out in his book on torts, “to say that a tort is an actionable wrong leaves undefined the term ‘actionable wrong’”. But there can be no doubt that in legal parlance, the two expressions are assumed to be interchangeable.
31. There is also another matter to be borne in mind in construing S. 10 (2) of the Rights, etc. Order, and that is the well-recognized fact that the primary and most common remedy for a tort is an action for damages. That this is an important feature of a tort is shown by the fact that in many text-books an action for damages has been made on integral part of the definition of a tort. A few examples will make this clear. A tort is defined by Salmond as
“a civil wrong for which the remedy is a common law action for unliquidated damages and which is not exclusively the breach of a contract or the breach of a trust or other merely equitable obligation. “
Professor Winfield, who did not see eye to eye with Salmond on many matters connected with the law of torts, gives the following definition of tortious liability:
“Tortious liability arises from the breach of a duty primarily fixed by the law; this duty is towards persons generally and its breach is redressible by an action for unliquidated damages.”
In Underhill’s Law of Torts, the definition runs as follows:
“A tort is an act or omission which is unauthorized by law and independently of contract infringes (a) some absolute right of another, etc. and (ii) gives rise to an action for damages at the suit of the injured party.”
The learned author after attempting to define a tort in this way goes on to state:
“A tort is described in the Common Law Procedure Act, 1852, as a wrong independent of contract. If we use the word ‘wrong’ a equivalent to violation of a right recognized and enforced by law by means of an action for damages, the definition is sufficiently accurate, but scarcely very lucid ; for it gives no clue to what constitutes a wrong or violation of a right recognized and enforced by law. It does, however, emphasize the fact that an essential characteristic of a tort is that the appropriate remedy for it is an action fur damages. An act or omission which does not give rise to an action for damages is not a tort.”
The State of Tripura Versus The Province of East Bengal –AIR 1951 SC 23 : (1951) SCR 1