Ritesh Shah v.

Tanmay Thakkar i

TABLE OF CONTENTS

S.No. PARTICULARS PAGE

1. TABLE OF CONTENTS ……………………………………………….. i

2. INDEX OF AUTHORITIES …………………………………………… ii

 Books and Commentaries

 Cases
 List of Abbreviations

3. STATEMENT OF FACTS ………………….………………….……… vi

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

5. QUESTIONS PRESENTED …………………………………………... viii

6. SUMMARY OF PLEADINGS ….…………………………………….. ix

7. WRITTEN SUBMISSIONS ………………………………………….. 1

8. PRAYER ………………………………………………………………... 9

INDEX OF AUTHORITIES

MEMORIAL ON BEHALF OF THE PLAINTIFF

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[ BOOKS & COMMENTARIES ]

S.No. Author and Subject

1. Ratanlal and Dhirajlal, The Law of Torts,
(Wadhwa & co. Nagpur)

2. Clerk and Lindsell, Clerk and Lindsell on Torts

(Sweet &Maxwell)

3. R.F.V. Heuston and R.A. Buckley,

Salmond and Heuston on The Law Of Torts,

(Universal Law Publishing Co. Pvt. Ltd.)

4. W.V.H. Rogers, Winifield and Jolowicz on tort,

(Sweet & Maxwell, London)

5. Margaret Brazier and John Murphy, Street on Torts,

(Butterworths,London, 10th – ed, 1999)

[ CASES ]
S.No. Case Name Citation
:
1. Entick v. Carrington (1765) 19 St Tr 1066

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2. Barker v. The Queen (1983) 153 C.L.R.338, 356

3. Lewis v. Ronald (1909) 101 LT 534

4. Mersey Docks and Harbour Board v. Procuter (1923) AC 253

(1894) 58 JP 369
5. Anderson v. Coutts

6. Hillen v. ICI(Alkali Ltd.) (1936) AC 65 (HL) p.69,70

7. Braithwaite v. Durham Steel Co. (1958) 1 WLR 986

8. Mokshada Sundari v. Union of India AIR 1971 Cal. 480

9. Blyth v. Birmingham Waterworks Co. (1856) 11 Ex. 781,784

10. Heaven v. Pender (1883) 11 QBD 503

11. Poonam Verma v. Ashwin Patel

AIR 1996 SC 2111, p. 2116
12. Mobil Oil Hong Kong Ltd. v. Hong Kong United Dockyards
Ltd [1991] 1 Lloyd’s Rep. 309
at 368
13. The Goring
[1987] Q.B. 687,708,713
14. Stone v. Cartwright
(1795) 6 TR 411,412

15. Indermaur v. Dames

[1866] LR 1 CP 274
16. Southport Corp v. Esso Petroleum Ltd
[1954] 2 QB 182 at 194

LIST OF ABBREVIATIONS

1. &: And

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2. AIR : All India Reporter

3. All ER: All England Reporter

4. A.C.: Appeal Cases

5. St Tr: State Trials

6. C.L.R: Calcutta Law Reports

7. LT: Law Times

8. JP: Justice of the Peace

9. Cal. : Indian Law Reports, Calcutta series

10. Co.: Company

11. Ex.: England Reporter

12. Ed. : Edition

13. Lloyd’s Rep.: Lloyd's list reports

14. Ltd. : Limited

15. no.: Number

16. Pvt. : Private

17. p. : Page Number

18. SC: Supreme Court

19. v. : Versus

20. vol. : Volume

21. W.L.R.: Weekly Law Reporter

22. QB: Queens Bench

23. LR: Law Reports

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24. CP: Law Reports: Common Pleas 1875-80

25. Corp.: Corporation

STATEMENT OF FACTS

The respondent most respectfully showeth:

1. That Ritesh Shah owned a famous confectionary shop in Kanpur under the name of

Home Sweets which also offered home delivery services.

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2. That Tanmay Thakkar gave an order to deliver 2 Kg of sweets to his house as he was

hosting a party in the evening.

3. That the respondent gave strict instructions while placing the order that the delivery

boy was not to enter his garden as he was growing a highly sensitive variety of grass

which might get damaged if anyone stepped on it.

4. That the appellant himself went to deliver the sweets himself and while he was in the

premises of the respondent, a cosco cricket ball fell near him from a nearby street

where some boys were playing cricket.

5. That he casually tossed it back to the boys but it did not clear the hedge of the

respondent’s garden which was also the boundary of his compound.

6. That one of the boys came forward to pick up the ball out of the hedge

7. That the appellant saw a wire passing through the hedge feared that it may be charged

with electricity and the child while trying to retrieve the ball might touch the wire and

get electrocouted.

8. That the appellant tried to warn the child but the child paid no heed to the warning.

9. That the appellant then ran through the respondents garden and got to the ball before

the child and in doing so badly damaged that patch of grass.

STATEMENT OF JURISDICTION

The counsel for the Respondent most humbly and respectfully submits to the Jurisdiction of

this Hon’ble High Court of Allahabad at Allahabad and accepts that this Court has territorial

and Pecuniary Jurisdiction to hear the present matter and adjudge accordingly.

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QUESTIONS PRESENTED

1. Whether or not the appellant is liable for trespass?

2. Whether or not the appellant is liable for negligence?

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3. Whether or not the appellant can avail the defence of act of necessity?

3.1 Whether or not the appellant acted on grossly unreasonable assumptions?

4. Whether or not the appellant is liable to pay damages?

SUMMARY OF PLEADINGS

1. Whether or not the appellant is liable for trespass?

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 As stated in the facts the appellant was given permission to deliver the sweets

to the respondents house.

 He was also given strict instructions not to enter the garden of the respondent

where there was some highly sensitive grass growing which would be

damaged if anyone stepped on it.

 An invitee or a visitor ceases to be one if he acts contrary to the instructions

given or goes to a place he is prohibited and not expected to go.

 Hence the appellant became a trespasser.

2. Whether or not the appellant is liable for negligence?

 Where the defendant has directly caused physical harm to the claimant or his

property by an act, a duty may readily be established by showing

foreseeability and nothing else.

 It is clear that the appellant had a duty not to enter the respondents garden, an

act he was prohibited to do.

 In doing so he committed breach of that duty

 It led to subsequent damage to the respondents’ property, hence the appellant

is liable for the tort of negligence.

3. Whether or not the appellant can avail the defence of act of necessity?

3.1 Whether or not the appellant acted on grossly unreasonable assumptions?

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 Necessity as a defence cannot apply when the necessity is created by the

defendant’s own negligent conduct.

 The appellant cannot take the plea of neccisity he acted under a mistake of

fact and under grossly unreasonable assumptions.

 He was under the mistake that the wire passing through the hedge was an

electric wire while in fact it was a Cable TV wire. Mistake of fact is not a

valid defence.

 Any reasonable and prudent man would be able to spot the difference

between a Cable TV wire and an electric wire as a Cable TV wire is much

thicker.

MEMORIAL ON BEHALF OF THE PLAINTIFF

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