DSNLU - 6th NOVICE MOOT COURT COMPETITION,2018

Roll Number: 18LLB061

IN THE HON’BLE PRINCIPAL DISTRICT JUDGE COURT OF JUNGPURA

ORIGINAL SUIT (O.S. NO. __ / 2018)

ON SUBMISSION TO THE HON’BLE PRINCIPAL DISTRICT JUDGE COURT OF VISAKHAPATNAM

UNDER SECTION 91(2) OF THE CODE OF CIVIL PROCEDURE

IN THE MATTER OF

JUNGPURA TOWNSHIP RESIDENTS’ WELFARE ASSOCIATION…………………………….PLAINTIFF

VS.

JIDH
KUMAR…………………………………………………………………….…………DEFENDANT

WRITTEN SUBMISSIONS FILED ON BEHALF OF DEFENANT

Counsels Appearing on Behalf of Defendant/-

MEMORIAL ON BEHALF OF DEFENDANT Page |

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TABLE OF CONTENTS

ABBREVIATIONS
............................................................................................................................III
INDEX OF

AUTHORITIES................................................................................................................IV
STATEMENT OF

JURISDICTION...................................................................................................VIII
STATEMENT OF

FACTS..................................................................................................................IX
STATEMENT OF ISSUES
.................................................................................................................XI
SUMMARY OF

PLEADINGS............................................................................................................XII
ARGUMENTS
ADVANCED...........................................................................................................1-8
1. WHETHER THE SUIT FILED BY PLAINTIFF IS MAINTAINABLE?
2. WHETHER THE ACTIONS OF THE JIDH KUMAR AMOUNT TO NUISANCE?
3. WHETHER THE RIGHTS OF PLAINTIFF INFRINGED?

PRAYER..................................................................................................................................9

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LIST OF ABBREVATIONS

ABBREVIATIONS EXPANSION
§ Section
§§ Sections
¶ Paragraph
AIR All India Reporter
HC High Court
Hon‟ble Honourable
SCR Supreme Court Reporter
SCC Supreme Court Cases

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INDEX OF AUTHORITIES

CASES

1.Pt.Srinath Sharma vs Municipal Corporation Of Delhi on 15 May, 2009

2.Harkishan Vs. M/s.Jain Textile Traders 1994(1) P.L.R. (Delhi) 30
3.St. Mary's Orthodox Church and another v Thankamani Rajan and others(Kerala)7 Oct, 2015
4.Jai Ram Sharma and others v Rajender Pal and others(Himachal Pradesh)8 Aug, 2018
5.D.L. Walton v. Cochin Stock Exchange Ltd., AIR 1995 Ker 106
6.Animal Welfare Board of India Vs. A. Nagaraja & ors., (2014) 7 SCC 547 2014 Indlaw
SC 412

STATUTES REFERRED

1. Indian Penal Code

2. Constitution of India
3. Civil Procedure Code
4. Prevention of Cruelty towards animals Act
6. The General Clauses act 1897
GUIDE LINES & RULES
1.Animal Welfare Board of India, Guidelines-With respect to pet & street dogs, and care Givers
and for Residents’ Welfare Association and Apartment Owners Association, Published on 26th Feb,
2015.
2.Animal Birth Control (Dog) Amendment Rules, 2010.
3.Animal Birth Control (Dog), Rules 2001.
4.Animal welfare act 2007 (UK)
5.Animals welfare act 2010 (Norway)

BOOKS REFERRED

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1. D. N. Mathur, Code of Civil Procedure, (Third Edition, 2015).

2. Das J.K, Codes of Civil Procedure, (E.d .2013)
3. Durga Das Basu, Introduction to the Constitution of India,(Ed. 1960.)
4. Justice C.K.Takwani, Civil Procedure (CPC) with Limitation Act, 1963, (7th
Edition,2016).
5. K.D. Gaur, A Textbook on the Indian Penal Code, (4th Edition, 2012).
6. M P Jain, Indian Constitutional Law, (8th Edition, 2018).
7. Madhav Khosla, The Indian Constitution: Oxford India Short Introductions,(2012).
8. Mulla, Code of Civil Procedure, (9th Edition, 2017).
9. Ratanlal & Dhirajlal’s, The Indian Penal Code, (35th Edition, 2017).

ONLINE RESOURCES
1. HeinOnline, https://home.heinonline.org/ (last seen on September 26, 2018).
2. Lexis India, https://www.lexisnexis.com/in/legal/ (last seen on September 26, 2018).
3. Manupatra, http://www.manupatrafast.com (last seen on September 26, 2018).
4. SCC Online, http://www.scconline.com/ (last seen on September 26, 2018).
5. Westlaw India, http://www.westlawindia.com/ (last seen on September 26, 2018).

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STATEMENT OF JURISDICTION

The Defendant humbly submits before the Hon’ble Principal District Judge Court of
Jungpura, the memorandum for the Defendant filled by the Defendant in a suit filed by the
plaintiff under § 91of Code of Civil Procedure. However, the Defendant seeks permission of
this Hon’ble Court to contend the maintainability of this Suit.

The present memorandum sets forth the facts, contentions and arguments in the present
case.

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STATEMENT OF FACTS

I.
JIDH KUMAR
Jidh Kumar lives in a two bedroom flat in the township of Jungpura Castle. He is very
famous for his books on pet grooming and activities for pets. He was a software engineer,
before turning into a fulltime author. In 2015, he bought the flat with the help of the royalties
he earned from his books. He is of the view that his sole purpose of living is to nurse the
disabled animals. His journey to a famous animal lover started in 2013, by creating the ‘Feed
Bucket Challenge’, wherein he challenged his friends to feed 5 stray dogs by sharing a full
bucket of food. The challenge was an instant hit and it was a trendsetter. After a year, he
challenged his friends to adopt stray dogs. He adopted 3 stray dogs. The challenge was
named as ‘Food and Blanket Challenge’. Though this was not as successful as the earlier
challenge, there are few posts on the social media on advantages and dangers in adopting a
stray dog. He moved into Jungpura Castle in 2015 with his 3 pet dogs. The large park in the
centre of the township is the main reason for him to buy a flat there, as his dogs get a lot of
space to run, explore and enjoy the clean environment. He was very happy to move into the
township from his old accommodation. In Jungpura Castle, he can see a lot of people who
own pets. He started a YouTube channel by the name ‘Dog’s Jidh’, where he posts videos on
activities, games and lessons on pet grooming. By December 2016, he had adopted 16 dogs,
most of which are disabled, all living with him in his flat. His daily routine starts with waking
up and taking all his dogs out for a walk. All the dogs used to answer nature’s calls during
that walk in the park. He had a very simple lifestyle in the township with his dogs.

II.
JUNGAPUR TOWNSHIP
It is the place where jidh Kumar was living since 2015. The township associations didn’t
have any complaints on jidh Kumar for two years but in July 2017, on receipt of a few
complaints from the neighbours of Jidh Kumar, the Residents’ Welfare Association of
Jungpura Township had formally asked Jidh Kumar to reduce the number of dogs by offering
them for adoption. He declined and said that he can manage all his dogs and there was not
even a single incident of his dogs going out of control. In the meanwhile, a new block of
apartments was constructed in the Township, which reduced the size of the park to one-

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quarter of the original size. In January 2018, elections were held for the Residents’ Welfare
Association of Jungpura Township. The newly elected members resolved that the residents
should be allowed to enjoy the premises to the fullest possible extent. In March 2018, basing
on complaints relating to the noise that the dogs make and disturbance caused the association
sent a notice to jidh Kumar. After a month of the notice the association filed a suit against
Jidh Kumar underground of nuisance.

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STATEMENT OF ISSUES

1. WHETHER THE SUIT FILED BY PLAINTIFF IS MAINTAINABLE?

2. WHETHER THE ACTIONS OF THE JIDH KUMAR AMOUNT TO NUISANCE?
3. WHETHER THE RIGHTS OF PLAINTIFF INFRINGED?

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SUMMARY OF ARGUMENTS
1.According to § 91 {1} of CPC . it tells us a suit on public nuisance can be filed only by the
following

1} advocate general can file it

2} one or more has to take leave from court

In other cases special damages are required to file a case .

But here suit was filed on defendant without following any of above mentioned .

Therefore suit is liable to be dismissed due to lack of special damage, which is an essential
element under § 91 of CPC.
In this suit no such conditions are fulfilled by the plaintiff to make the defendant liable and
moreover this is a suit which ignored the procedure in code of civil procedure.

2. Guidelines for pet owners issued by Animal Welfare board of India powers the pet owners
with many rights and under these the barking or dogs, dogs urine and excreta in the parks won’t
be considered as nuisance for which the defendant can’t be made liable.

3.The Association cannot ban the dogs in the township. Even by amending bye-laws or
regulations or otherwise, such a “ban’ cannot be put into place since it is illegal, does not
have the sanctions of law . If the residents or occupiers that have pets are not violating any
municipal or other laws, it is not permissible for residents welfare associations and apartment
owners associations to object to their having pet as companions.

Therefore the association didn’t have any legal right to ban the dogs from the township.

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ARGUMENTS ADVANCED

Whether the suit filed by is maintainable?

a public nuisance or other wrongful act affecting or likely to affect the public, a suit for a
declaration and injunction or for such other relief as may be appropriate in the circumstances
of the case, may be instituted,-
(a) By the Advocate-General, or
(b) With the leave of the court, by two or more persons, even though no special damage has
been caused to such persons by reason of such public nuisance or other wrongful act.
(2) Nothing in this section shall be deemed to limit or otherwise affect any right of suit which
may exist independently of its provisions."

According to section 91 {1} of CPC . it tells us a suit on public nuisance can be filed only by
the following

1} advocate general can file it

2} one or more has take leave from court

In other cases special damages are required to file a case

Here the RWA filed public nuisance suit against jidh kumar .
There is a certain systematic way to file a suit on public nuisance as mentioned above more
over their claim is neither related to common damage nor special damages to anyone. Though
if it is said that their claim is regarding a common damage, then leave of the court is essential.
Therefore, the suit is liable to be dismissed due to lack of special damage, which is an essential
element under section 91 of CPC.

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WHETHER THE ACTIONS OF THE JIDH KUMAR AMOUNT TO NUISANCE?

The term public nuisance covers a wide variety of minor crimes that threaten the health,
morals, safety, comfort, convenience, or welfare of a community. Violators may be punished
by a criminal sentence, a fine, or both. A defendant may also be required to remove a
nuisance or to pay the costs of removal. For
example, a manufacturer who has polluted a stream might be fined and might also be ordered
to pay the cost of cleanup. Public nuisances may interfere with public health, such as in the
keeping of diseased animals or a malarial pond. Public safety nuisances include shooting
fireworks in the streets, storing
explosives, practicing medicine without a license, or harboring a vicious dog. Houses of
prostitution, illegal liquor establishments, Gaming houses, and unlicensed prizefights are
examples of nuisances that interfere with public morals. Obstructing a highway or creating a
condition to make travel unsafe or highly disagreeable are examples of nuisances threatening
the public convenience. A public nuisance interferes with the public as a class, not merely
one person or a group of citizens. No civil remedy exists for a private citizen harmed by a
public nuisance, even if his or her harm was greater
than the harm suffered by others; a criminal prosecution is the exclusive remedy. However, if
the individual suffers harm that is different from that suffered by the general public, the
individual may maintain a TORT ACTION for damages. For example, if dynamiting has
thrown a large boulder onto a public
highway, those who use the highway cannot maintain a nuisance action for the
inconvenience. However, a motorist who is injured from colliding with the boulder may bring
a tort action for personal injuries.
Some nuisances can be both public and private in certain circumstances where the public
nuisance substantially interferes with the use of an individual's adjoining land.

Private Nuisance

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A private nuisance is an interference with a person's enjoyment and use of his land. The law
recognizes that landowners, or those in rightful possession of land, have the right to the
unimpaired condition of the
property and to reasonable comfort and convenience in its occupation.

Public nuisance shall mean a public nuisance as defined in the Indian Penal Code.1 Section
268 of Indian Penal Code says that, a person is guilty of a public nuisance who does any act
or is guilty of an illegal omission which causes any common injury, danger or annoyance to
the public or to the people in general who dwell or occupy property in the vicinity, or which
must necessarily cause injury, obstruction, danger or annoyance to persons who may have
occasion to use any public right.2

Banning of pets : we have to keep in mind that even by consensus, or even if the majority of
residents and occupiers want it, residents welfare associations and apartment owners
associations cannot legally introduce any sort of “ban’’ on the keeping of pet dogs . They
cannot insist that “small sized’’ dogs are acceptable and “large sized’’ dogs are not . they
cannot cite dog barking as a valid and compelling reason for any reason for any proposed ban
or restriction.3

If the residents or occupiers that have pets are not violating any municipal or other laws, it is
not permissible for residents welfare associations and apartment owners associations to object
to their having pet as companions . The general body cannot frame bye-laws or amend them
in a manner that is at variance with the laws of the country . even by a complete majority , a
general body cannot adopt an illegality .4

1
The General Clauses Act , 1897, s. 3(48).
2
Indian Penal Code, 1860, s.268.
3
Guidelines With Respect To Pet And Street Dogs And Their Care Givers And For Residents Welfare
Associations And Apartment Owners Associations, Animal welfare Board Of India (AWBI), 2015.
4
Guidelines With Respect To Pet And Street Dogs And Their Care Givers And For Residents Welfare
Associations And Apartment Owners Associations, Animal welfare Board Of India (AWBI), 2015.

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Please therefore bear in mind that even by amending bye-laws or regulations or other wise,
such a “ban’ cannot be put into place since it is illegal, does not have the sanctions of law .
In fact, in trying to ban pets, or limit their number, residents , welfare associations and
apartment owners associations interfere with a fundamental freedom guaranteed to the
citizens of India i.e the freedom to choose the life they wish to live, which includes facets
such as living with or without companion animals 5

In absence of central or state laws requiring cleaning of pet excreta by pet owners, residents
welfare associations and apartment owners associations cannot impose any rule, regulations
or bye- law with respect to the same
, or impose special charges or fines on pet owner . They can , however request
them to do so . the board also recommends to and advises all pet owning residents to accept
reasonable and lawful requests to participate in solutions
aimed at peaceful community living.6

Here defendant is not liable for stinky in garden by excretion of animals . more over it is not
mentioned that only dogs of jidh Kumar are only reason for this because there are other
animals in apartment . But only jidh Kumar was made liable .

5
Guidelines With Respect To Pet And Street Dogs And Their Care Givers And For Residents Welfare
Associations And Apartment Owners Associations, Animal welfare Board Of India (AWBI), 2015.

6
Guidelines With Respect To Pet And Street Dogs And Their Care Givers And For Residents Welfare
Associations And Apartment Owners Associations, Animal welfare Board Of India (AWBI), 2015.

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WHETHER THE RIGHTS OF PLAINTIFF INFRINGED?

Article 51A of the Constitutional Law of India, speaks about the duties of every citizen of
India. One of these duties includes having compassion for living creatures. So the animal
lover is protected under the Constitution.
In (1) Dr. Rosario Menezes and Another; (2) S. A. Mohite and Others; (3) Ayurvarta
Prabodhini; (4) Dr. Rozario Menezes and Another; (5) All India Animal Welfare Association;
(6) In Defence of Animals; (7) Viniyog Parivar Trust and Others v (1) State of Goa and Others;
(2) Union Department of Culture, Delhi and Others; (3) State of Maharashtra and Others; (4)
Union of India and Others; (5) Brihanmumbai Municipal Corporation and Another; (6)
Municipal Corporation of Bombay and Others,7
It was held that, it is important to take note of Article 51A(g) of the Constitution Of India,
1950, which imposes Constitutional duty on every citizen of India to show compassion to all
living creatures.
Stray dogs being homeless/ abandoned are especially deserving the compassion from Society
and killing of stray dogs, merely because they are ownerless would amount to lack of
compassion, would therefore violate Article 51A(g).

Article 19 of the Constitution of India, deals with the right to freedom and in this freedom
comes the right to profession, occupation, trade and business. Therefore, it means that every
citizen has the right to occupation and if someone has taken up the caring of animals as his
occupation, it is legal and he has every right to carry on with his occupation.
Article 21 of the Constitution of India states the right to personal life and liberty. This is a very
vast right. If someone wants to feed and provide shelter to dogs, he is at liberty to do so. He
has the same right to liberty that the law provides to every citizen of India.. In Animal Welfare
Board of India Vs. A. Nagaraja & ors.,8 Hon'ble Supreme Court has observed that the word
"life" includes all forms of life including animal life which are necessary for human life. has
quoted from Isha Upanishads (1500-600 BC) where Upanishad professed that no creature is
superior to any other and no species should encroach over the rights and privileges of other
species. Following was stated in paragraph 55:
"55. As early as 1500-600 BC in Isha - Upanishads, it is professed as follows:

7
2008 Indlaw MUM 1118.
8
(2014) 7 SCC 547.

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"The universe along with its creatures belongs to the land. No creature is superior to any other.
Human beings should not be above nature. Let no one species encroach over the rights and
privileges of other species."

But, above every other law and right, there is a natural right which is a universal right,
inherent in the nature of ethics and contingent on human actions or beliefs. It is the right that
exists even when it is not enforced by government or society as a whole. It is the right of the
individual and considered beyond the authority of a government or international body to
dismiss. Therefore, if
there are any rights at all, there must be right to liberty, for all others depend on this. And the
choice of loving, caring, feeding and giving shelter to dogs is the natural right of any
individual.
In a judgment passed by the Delhi Court, it has been stated that the Animal Welfare Board of
India and the municipal authorities have in their guidelines specified the problem often faced
by individuals and families who care for and feed stray animals. The Court has said that it is
necessary to bring on record that these individuals and families who care for stray animals are
doing a great service to humanity as they are acting in the aid and assistance of municipal
authorities by providing these animals with food and shelter .Without the assistance of such
persons no local municipal authority can successfully carry out its ABC programme. The
court has proceeded to say that the local police
and the RWAs are under obligation not only to encourage such adoption but also to ensure
protection to such persons who take care of these animals specifically community or
neighborhood dogs so that they are not subjected to any kind of harassment.
The Court has also reiterated that every individual has the right to live his life in the manner
he wants and it is necessary that society and the community recognize this.

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FINAL SUBMISSION/PRAYER

It is, therefore, most humbly prayed before this Hon’ble District to kindly dismiss
this vexatious Suit filed by Plaintiff and may be pleased to adjudge and declare that:

1. This suit is not maintainable under the law.

2. Defendants actions do not amount to Nuisance

3. Dismiss the suit filed by the Association in the Interest of justice, with costs.

And/or pass such other order in light of justice, equity and good Conscience which this
Hon’ble court may feel fit and proper in the circumstances of the case.

And for this act of kindness, the Respondent duty bound shall forever pray.

All of which are most humbly prayed.

S/d-
Counsels for Defendant/-

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