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6th Novice Moot Court Competition, 2018

BEFORE THE HON’BLE DISTRICT COURT


VISAKHAPATNAM,ANDHRAPRADESH

IN THE MATTERS OF:

JUNGPURA TOWNSHIP RESIDENT’S WELFARE ASSOCIATION ...APPELLANT

V.

JIDH KUMAR ...RESPONDENT

Original Suit No. ___ OF 2018

UNDER S. 91 and S. 9 OF CIVIL PROCEDURE CODE

ORIGINAL SUIT

WRITTEN SUBMISSION ON BEHALF OF RESPONDENT


COUNSEL APPERING ON BEHALF OF RESPONDENT

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6th Novice Moot Court Competition, 2018

TABLE OF CONTENTS

LIST OF ABBREVIATIONS…………………………………………………………………2

INDEX OF AUTHORITIES…………………………………………………………………..3

STATEMENT OF JURISDICTION…………………………………………………………..4

STATEMENT OF FACTS…………………………………………………………………….5

STATEMENT OF ISSUES……………………………………………………………………6

SUMMARY OF ARGUMENTS………………………………………………………………7

ARGUMENTS ADVANCED…………………………………………………………………8

1. That the Hon’ble District Court has no jurisdiction to entertain this suit.
2. That the acts of Jidh Kumar does not amount to Public Nuisance….……………….8
A. That there is no special damage to the plaintiff in this case…………….………..8
B. That the case is that of damnum sine injuria which is not actionable in the court of
law ……………………………………………………………………………....9

PRAYER……………………………………………………………………………………..12

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6th Novice Moot Court Competition, 2018

LIST OF ABBREVIATIONS

& And
Hon’ble Honourable
SCC Supreme Court Cases

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6th Novice Moot Court Competition, 2018

INDEX OF AUTHORITIES

Statutes:

1. Code of Civil Procedure, 1908


2. Indian Penal Code, 1860
3. Constitution of India

Books:

1. RATANLAL & DHIRAJLAL, THE LAW OF TORTS (27th ed. 2016)


2. BRYAN A. GARNER ed., BLACK’S LAW DICTIONARY (9th ed. 2009)
3. WINFIELD & JOLOWICZ, TORT (18th ed. 2010)

Cases:

1. Rafat Ali v. Sugni Bai, (1999) 1 S.C.C. 133 (India)


2. National Coal Board v. Evans, 1 All ER 546, (1954).
3. Bhaba Kanta v. Ramchandra, 1987 Cr.L.J. 1155.
4. Gloucester Grammar School Case
5. Mogul Steamship Co. v. McGregor Gow and Co.
6. Jethu Singh v. State of Rajasthan
7. Town Area Committee v. Prabhu Dayal
8. Buckle v. Holmes
9. Manton v. Brocklebank

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6th Novice Moot Court Competition, 2018

STATEMENT OF JURISDICTION

The Petitioners have approached the Hon’ble Court under Section 91 of the Civil Procedure
Code. The Respondent humbly submits that this Court has no jurisdiction in this case.

S. 91

1. In the case of 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 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 which may
exist independently of its provisions.

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6th Novice Moot Court Competition, 2018

STATEMENT OF FACTS

Jidh Kumar, a famous dog enthusiast and author, moved to Jungpura Castle in 2015 with 3
dogs. The main reason for him to shift to this place was the large park in the middle of the
township, as his dogs get a place to play and a clean environment. This would help him
pursue the sole aim in his life, to nurse disabled animals. Here, he can also see a lot of people
who own pets. By December 2016, he had adopted 16 dogs, and had created a daily routine
for himself, involving taking his dogs out for a walk early in the morning to the park, where
they would answer nature’s calls.

In July 2017, after receiving complaints from the neighbours of Jidh Kumar, the Resident
Welfare Association of Jungpura Township formally asked him to reduce the number of dogs
by offering them for adoption and also to get all his dogs vaccinated. He declined, saying he
can manage all his dogs and there was not even a single incident of his dogs going out of
control.

A new apartment block was created in the Township reducing the size of the park to one-
quarter of the original size. Soon, there were incidents of dog bites. In January 2018,
elections were held for the RWA of the Township and the new members decided that the
Township should be clean and residents should enjoy the premises to fullest possible extent.
In March 2018, based on complaints on the noise and disturbance caused by the dogs, the
Association sent a notice to Jidh to control his dogs as exam season is approaching. He
replied that it is natural for dogs to bark and you cannot control it. By June 2018, it was found
that the park is stinking and filled with animal excreta. Apart from Jidh Kumar, only three
other residents had pets. The Association asked Jidh to desist from using the park as an area
for his dogs to excrete and to ensure that his dogs do not harm anybody. Jidh ignored the
request.

The state of things has not changed even after a month, and Jidh’s daily routine is still the
same. The Association has filed a suit against Jidh Kumar.

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6th Novice Moot Court Competition, 2018

ISSUES RAISED

1. Whether the District Court has jurisdiction to entertain this case?

2. Whether the acts of Respondent amounts to Public Nuisance?

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6th Novice Moot Court Competition, 2018

SUMMARY OF ARGUMENTS

1. Whether the District Court has jurisdiction to entertain the case?

It is humbly submitted before the Hon’ble Court that this court has no jurisdiction to try the
case under section 91 (2) of CPC as the prerequisite of the provision is not fulfilled in this
case.

2. Whether the acts of respondent amounts to Public Nuisance?

It is humbly submitted before the court that acts of respondent does not amount to public
nuisance as the essential ingredients of the public nuisance is not satisfied in this case and the
case falls under damnum sine injuria which is not actionable before the court of law.

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6th Novice Moot Court Competition, 2018

ARGUMENTS ADVANCED

1. That the Court has no Jurisdiction to entertain this suit.


1.1. Requisition of two or more person under section 91(2) of CPC.

Section 91 requires that in the case of public nuisance there shall be two or more persons1. It
is humbly submitted that the plaintiff in this case is a single entity which in no stretch of
imagination could be considered as two or more persons. Moreover, it is nowhere indicated
that plaintiff himself has suffered any damages or injury due to the acts of respondent. Leave
aside the special damage, plaintiff here, has not suffered any damage whatsoever in this case
or for that matter it is clear from the moot proposition2 that it only indicates the incidence of
dog bites and it is not mentioned that the dogs of respondent are causing such incidents.

1.2. Section 133, 145, 147 of Crpc is the proper remedy in this case.

It was held in the case of Bhaba Kanta v. Ramachandra3, that in cases of urgency like
keeping the dogs and causing annoyance thereby, the proper remedy available to the
petitioner was to approach under the provisions of Criminal Procedure Code and not through
ordinary suit under civil law.

Therefore, this court on above grounds has no jurisdiction to try this case and the same is
liable to be dismissed.

2. That the acts of Respondent do not amount to Public Nuisance

The essential ingredients of the tort of public nuisance are as follows: 4

a) Act or illegal omission on the part of defendant


b) Common injury or annoyance or danger
c) Affect the public right
2.1. There is no illegal act or omission by the respondent:

This is the first essential of the public nuisance which is sine qua non for establishing the act
of public nuisance. The respondent in this case is legally keeping the disabled animals 5 as he

1
Section 91(2) civil procedure code, 1908
2
Para 5, Moot Proposition ¶
3
1987 Cr.L.J 1155
4
Section 268, Indian Penal Code
5
Para 1, Moot Proposition

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has love and affection towards them and acting in bona fide manner for their welfare.
Moreover, Article 51 A (g) of the Constitution of India provides for the compassion for living
creatures and directs the states to protect and improve the natural environment. Therefore,
respondent is not in any manner engaged in any unlawful activities but in fact acting in bona
fide manner to protect the lives of disabled animals, i.e. dogs. On the other hand, it is the act
of the plaintiff in reducing the area of park to one quarter of its original size by constructing
new apartments which is the actual cause behind the rise in man-animal conflicts. The same
is evident from the facts6 in this case.

Further, the guidelines of Animal Welfare Board7 provides that

a) Even if the majority of residents want they cannot legally introduce any sort of ban on
keeping of the 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 proposed ban or restriction.
b) If the occupiers do not violate any municipal or local laws then associations are not
permitted to object to their having pets as companions.

Therefore it is submitted that since the respondent is keeping the dogs legally and does not
violate any municipal laws, etc. therefore respondent is not liable to any nuisance.

2.2.The act of respondent amounts to damnum sine injuria

It is a well settled law that causing damage, however, substantial, to another person is not
actionable in law unless there is also violation of a legal right of the plaintiff. This is
generally so when the exercise of legal right by one results in consequential harm to the
other. In this case the respondent is exercising his legal right of keeping animals as pets and
therefore he is not liable for this act because he is not causing any legal injury. In the
landmark case of Gloucester Grammar School8, court held that plaintiff has no remedy as the
act of defendant falls under the doctrine of damnum sine injuria.

The same principle was followed in cases of Mogul Steamship Co. v. McGregor Gow &
Co9., Jethu Singh v. state of Rajasthan10 and Town Area Committtee v. Prabhu Dayal11. In

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Para 5, Moot Proposition
7
26th February 2015
8
(1410) YB Hill 11 Hen
9
(1892) AC 25
10
AIR 2014 Raj 157
11
AIR 1975 All 132

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these cases the respondent/defendant were not held liable following this principle of damnum
sine injuria.

2.3. Liability for keeping animals ‘mansuetae nature’:

For making the defendant liable for the damage done by an animal belonging to the class of
harmless or domestic animals, two things have to be proved:

i) That the animals in question had a vicious propensity which is not common to
animals of that species, and
ii) That the defendant had the actual knowledge of the viciousness

In this case none of the above essentials are fulfilled and therefore the respondent is not held
liable. The same principle was followed in the case of Buckle v. Holmes12, where the
defendant’s cat entered the plaintiff’s land and thereby killed 13 pigeons and two bantams.
Since the cat in doing so had followed the ordinary instincts of its kinds and there was no
vicious propensity to this cat, its owner was held not liable.

Further, in Manton v. Brocklebank13, the act of kicking by the mare of the defendant was not
held to be liable.

It is submitted that the barking of the dogs is the ordinary instinct of their own and hence the
respondent cannot be made liable for such acts.

12
(1926) 2 KB 125
13
(1923) 2 KB 212

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6th Novice Moot Court Competition, 2018

PRAYER

In the light of the authorities cited, issues raised and arguments advanced, it is humbly
requested that the Hon’ble Court may be pleased to adjudicate and declare:

I. That the Hon’ble District Court has no jurisdiction to entertain this case under
section 91 of CPC
II. That the respondent is not liable for any public nuisance and the association cannot
ban the dogs of the respondent from entering into the premises of the park.

All of which is humbly prayed,

Counsel for the Respondent

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