--6TH NOVICE MOOT COURT COMPETITION--

Roll No.18LLB001

THE 6TH NOVICE MOOT COURT COMPETITION, 2018

DAMODARAM SANJIVAYYA NATIONAL LAW UNIVERSITY,

VISAKHAPATNAM

BEFORE THE DISTRICT COURT OF VISAKHAPATNAM

………………………………………………………………...………………………………...

Jungpura Township Residents’ Welfare Association……………………………..(Petitioner)

v.

Jidh Singh……………………………………………………….…………..…..(Respondent)

………………………………………………………………………………………...………...

Memorial for the Petitioner

(Counsel on behalf of the Petitioner)

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TABLE OF CONTENTS

• LIST OF ABBREVIATIONS…………………………………………….…………03
• INDEX OF AUTHORITIES…………………………………………………...……04

Books…………………………………………………………………………………….04

Websites……………..…………………………………………………………..….……04

Table of Cases…………….…………………………………………………..……….…04
Statues..…………………………………………………………………………….…….04

• STATEMENT OF JURISDICTION…………………………………………………05
• STATEMENT OF FACTS……………………………………………………...……06
• STATEMENT OF ISSUES……………………………………………………..……07
• SUMMARY OF ARGUMENTS…………………………………………….………08
• ARGUMENTS ADVANCED…………………………………………………..……09
• PRAYER……………………………………………………………………………..16

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LIST OF ABBREVIATIONS

1. Asso………………………………………………………………..……….Association
2. &…………………………………………………………………….……………..And
3. Hon’ble…………………………………………………..………………..…Honorable
4. V………………………………………………………..……………………..…Versus
5. RWA………………………………………………..…Residents’ Welfare Association
6. AIR………………………………………………………………......All India Reporter
7. Art…………………………………………………………………………...…...Article
8. Co……………………………………………………………………………..Company

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INDEX OF AUTHORITIES

BOOKS REFERRED

1. Tort by Winfield & Jolowicz

2. Law of Torts by R.K.Bangia
3. Black’s Law Dictionary
4. M.P.Jain, The Code of Civil Procedure,1908

WEBSITES

1. Westlaw
2. Manupatra
3. SCC OnLine
4. Indiankanoon

TABLE OF CASES

1. D.Vikram Vs. Dr.Jayavarthavavelu, (2009 SCC OnLine Mad 2776)

2. Ball Vs. Ray, (1873) L.R. 8 Ch. App. 467).

3. Vincent Vs. Union of India, (AIR 1987 SC 990).

4. Radhey Shyam Vs. Gur Prasad, (AIR 1978 All. 86).

5. Crump Vs. Lambert, (1867) L.R. 3 Eq. 409

6. Raiper v. London Ramways Co., 9 [1893] 2 Ch 588.

7. Padma Thakore And Anr v. Dilip Shah And Ors. (2016 SCC Online Bom 4785.)

STATUES

• The Code of Civil Procedure, 1908

• The General Clauses Act, 1857
• The Constitution of India, 1950.

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OTHER AUTHORITIES

• Animal Welfare Association Guidelines, Feb 2014

STATEMENT OF JURISDICTION

The plaintiff has approached the Hon’ble Court under Section 91 r/w Order 1 Rule 8 of Code
of Civil Procedure, 1908.

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STATEMENT OF FACTS

1.Jidh Kumar was an Engineer turned Author ,who bought a flat at Jungpura Castle in
2015.He moved to Township with his 3 pet dogs which were adopted from the streets.

2.In his old accommodation he used to get a lot of complaints from his neighbours that the dogs
are causing disturbance.

3.Junapura Township had a large park which was a main reason for Jidh Kumar to buy a flat
so that his dogs get lot of space.

4.By December 2016 ,he had adopted16 dogs most of which were disabled, all lived with his
in his flat. His daily routine was to take all his dogs for walk in park where dogs used to urinate
and excrete.

5.In July 2017 , on the receipt of few complaints from the neighbours of Jidh Kumar, the
Residence’s Welfare Association of Junapura Township had formally asked Jidh Kumar to
reduce the number of dogs and get all his dogs vaccinated to which he declined and said there
were no such incidents of his dogs going out of control. After the construction of the new block,
the size of the park reduced to one-quarter of original. After that there was rise in number of
Man-Animal conflicts and also incidents of dog bites.

6.In March 2018, on the basis of complaints relating to noise made by dogs and disturbance
caused, Association sent a notification to Jidh Kumar to controlling dogs, as the exam season
for children are coming to which he replied that barking is natural. You cannot control this
noise.

7.By June 2018, the park was stinking, filled with animal excreta. There was no clean space
for children to play. Except Jidh Kumar only three residents have dogs one dog each. The
Association asked Jidh Kumar to desist from using the park as an excrete area for his dogs and
to ensure his dogs not to harm anybody.

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8.The state of things have not changed even after a month. The Association filed suit against
Jidh Kumar.

STATEMENT OF ISSUES

1. WHETHER THE PLAINTIFF HAS LOCUS STANDI IN PRESENT CASE BEFORE

THE HON’BLE COURT?
2. WHETHER THE ACT OF JIDH KUMAR AMOUNTS TO PUBLIC NUISANCE OR
NOT?
3. WHETHER THE RESPONDENT ACTED NEGLIGENTLY OR NOT?

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SUMMARY OF ARGUMENTS

1. WHETHER THE PLAINTIFF HAS LOCUS STANDI IN PRESENT CASE

BEFORE THE HON’BLE COURT?

The plaintiff has humbly approached the Hon’ble court under section 91 r/w Order 1 Rule
8 of Code of Civil Procedure, which states that if even though there are no special damages,
the plaintiff can file a suit with the leave of the court. Order 1 Rule 8 states a single person
can file a suit in public nuisance on behalf of others as a Representative Suit.

2. WHETHER THE ACT OF JIDH KUMAR AMOUNTS TO PUBLIC NUISANCE

OR NOT?

The acts of dogs in this case amount to public nuisance as it is affecting the public and
interfering with their health, safety and comfort of the public. So in this case the respondent
should be held liable for the acts of his dogs towards petitioner as they created nuisance.

3. WHETHER THE RESPONDENT ACTED NEGLIGENTLY OR NOT?

The acts of the respondent in the present case amount to negligence as he failed to fulfill
the legal duty towards the residents of township by certainly spoiling the peaceful and
congenial atmosphere of the Township.

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ARGUMENT ADVANCED

1.Whether the plaintiff has locus standi in the present case before the Hon’ble Court

The plaintiff humbly submits before Hon’ble Court that the plaintiff has locus standi in the
present case. The plaintiff has approached the Hon’ble Court under section 91 1read with order
1 rule 82 of Code of Civil Procedure.

The section 91 of CPC states that:

91. Public nuisances and other wrongful acts affecting the public.

(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 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.

As per the aforementioned section, the cases of public nuisance could only be filed by the
Advocate-General or by two or more persons with the leave of the court. In the present case,

1 Code of Civil Procedure, 1908, s 91.

2
Ibid, Order 1 Rule 8

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the plaintiff is filing a representative suit on behalf of the residents of the Jungpura Township
under Order 1 Rule 8 of CPC.

The Order 1 Rule 8 of CPC states;

8. One person may sue or defend on behalf of all in same interest-

(1) Where there are numerous persons having the same interest in one suit,

(a) one or more of such persons may, with the permission of the Court, sue or be sued,
or may defend such suit, on behalf of, or for the benefit of, all persons so interested;

(b) the Court may direct that one or more of such persons may sue or be sued, or may
defend such suit, on behalf of, or for the benefit of, all persons so interested.

(2) The Court shall, in every case where a permission or direction is given under sub-rule (1),
at the plaintiff's expense, give notice of the institution of the suit to all persons so interested,
either by personal service, or, where, by reason of the number of persons or any other cause,
such service is not reasonably practicable, by public advertisement, as the Court in each case
may direct.

(3) Any person on whose behalf, or for whose benefit, a suit is instituted, or defended, under
sub-rule

(1), may apply to the Court to be made a party to such suit.

(4) No part of the claim in any such suit shall be abandoned under sub-rule (1), and no such
suit shall be withdrawn under sub-rule (3), of rule 1 of Order XXIII, and no agreement,
compromise or satisfaction shall be recorded in any such suit under rule 3 of that Order, unless
the Court has given, at the plaintiff's expense, notice to all persons so interested in the manner
specified in sub-rule (2).

(5) Where any person suing or defending in any such suit does not proceed with due diligence
in the suitor defence, the Court may substitute in his place any other person having the same
interest in the suit.

(6) A decree passed in a suit under this rule shall be binding on all persons on whose behalf,
or for whose benefit, the suit is instituted, or defended, as the case may be.

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Section 91 does not take away any independent right of suit which may exist, nor does it
override the provision of Order 1, rule 8 and take away any right of suit under that rule even in
a case of public nuisance.3

Suit is defined as a proceedings in a court of law in which a plaintiff demands the recovery of
a right or the redress of wrong. 4

The words Public Nuisance have not been defined in the Code, Under Section 3(48) of the
General Clauses Act, 1897,it is defined as an act or illegal omission which causes any common
injury, or which must necessarily cause injury, obstruction, danger or annoyance to persons
who may have occasion to use any public right. 5

By the amendment Act of 1976, this section was amended to the effect that it would be enough
if the leave of the court is obtained by such two or more persons.

The provisions of the Sub-section have also been extended to wrongful act other than public
nuisance which effect the public. 6

A private person cannot maintain a suit in respect of a public nuisance, unless he is able to
show some special damages suffered by him. The section provides exception to that rule and
enacts that such a suit can be maintained even without proof of special damages, provided leave
of the court is obtained and the other conditions of the section are satisfied. It may be noted
that this section applies in the case of public nuisance only.

Order 1 Rule 8, will not provide any new right but just enables you to file in the capacity of
representative on behalf of others.

2. WHETHER THE ACT OF JIDH KUMAR AMOUNTS TO PUBLIC NUISANCE OR

NOT

Nuisance has been defined to be anything done to hurt or annoyance of the land, tenements or
hereditaments of another not amounting to trespass.

3
Smt. Chandrawati Devi & others v Rameshwar Kaviraj& others,1968 SCC OnLine Pat 17
4
Merriam Webster’s Dictionary, 1254(10 th ed.2004)
5
Section 268, Indian Penal Code, 1860
6
.Jain, M.P., The Code of Civil Procedure, (3rd ed.2011), p. 297.

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Public nuisance is the interference with the right of public in general and a person is guilty of
public nuisance who does any act, 1which causes any common injury, danger or annoyance to
the public or 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.7

It is an act affecting the public at large , or some considerable portion of it and it must interfere
with right which members of community might otherwise enjoy.

As mentioned in the facts that Jidh Kumar was keeping more than 15 dogs in a residential
society and his daily routine is waking up and taking all his dogs out for a walk in the public
park of Jungpura Township RWA where all the dogs used to answer nature`s calls during that
walk. They use to excrete and urinate in public park which causes public nuisance, scienter of
the respondent was present.

Keeping the huge number of dogs that create noise and affect the peaceful life of neighbours.
Under article 21 of constitution of india, the right to live peacefully without noise pollution and
hazardous condition is a fundamental right guaranteed under article 21 of constitution of india
and the act of defendant of keeping large number of dogs of different varities at the residential
area is detrimental to the fundamental right of the residents. The howling and the barking of
dogs, and a notice was also sent to him. Despite all these, state of things haven’t changed.

When the RWA of Jungpura Township had asked Jidh Kumar for vaccination of those dogs,
he declined and stated that he can manage all his dogs. After some time when the area of the
park was reduced to one quarter of original size, incidents of dog bites increased.

In Raiper v. London Ramways Co.,8 in this case it is held that if noise and smell for large
number of animals is intolerable in densely populated neighborhood, it amounts to nuisance
and there is no defence that all reasonable care is taken

The action must brought “against the hand committing the injury, or against the owner for
whom the act was done.

In the case of D.Vikram Vs. Dr.Jayavarthavavelu,9 the petitioner was keeping more than 30
varities of dogs in a house. The dogs were making the noises of barking and howling , which

7
Winfield & Jolowicz, Tort, 19th Edition, 2016, p. 448.
8
[1893] 2 Ch 588.
9
(2009 SCC OnLine Mad 2776)

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affects the respondents and there family member and other people of vicinity and also created
unhealthy atmosphere besides causing annoyance , as a dogs foul smell, causing inconvenience
to the residents and the guests in the area.

In investigation it was found that the some dogs in the residential area ferocious in nature and
the dogs kept by the petitioner was also commercial in nature and hence, the nuisance cause by
the petitioner is constituted as a public nuisance. Keeping large number of dogs at residential
is detrimental to the fundamental right of the residents which guaranteed under Art. 21 of
Constitution of India which states that right to live peacefully.

The court held that keeping 6 or 7 dogs in a residential area will cause public nuisance on the
account of barking and howling of the dogs, similarly emitting foul smell by the dogs cannot
be ruled out, which would also cause public nuisance.

In Vincent v. UOI,10 the Hon’ble court held that in a welfare state it is the obligation of the
state to ensure the creation and the sustaining of conditions congenial to good health. In the
instant case the respondent and others who are residing in the residential society where the
petitioner is keeping number of dogs which are barking and howling in a residential area will
certainly spoil the peaceful and congenial atmosphere of public in the residential area. 11

In Ball v. Ray,12 the accquire of a house in a street may fair had many year previously converted
the ground floor into a stable. A new occupier altered the location of the stable so that the noise
of the horses became an envious to the next- door neighbour and prevented him from letting
his houses as lodeging. The court held that in making out the case of the nuisance of this
character there are always two things to be considered, the right of the plaintiff and the right of
the defendant. The House adjoining the each other are so built so that commencement of their
existence it is manifest that each adjoining inhabitant was intended to enjoy his own property
for ordinary purposes for which it and all the different part was constructed, then so long as
that the house is so used that nothing that can be regarded as law as the nuisance which the
other party has a right to prevent. But, on the other hand, either party turns his house, or any
portion of it to unusual purpose in such a manner as to produce a substantial injury to his
neighbour, it appear to me that, that is not according to principle or authority a reasonable use
of his own property and his neighbour , shewing substantial injury entitled to protection. I do

10
1987 AIR 990 468.
11
Ibid
12
(1873) LR 8 Ch D 467.

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not regret it as a reasonable or as a usual manner of using the front portion of a dwelling house
in such a street as green street, that it should be turn into stables for horses, if it is so use then
the proprietor is bound to take care that it is so used as not to be a substantial determinal to the
comfort and to the value of neighbour property.13

REMEDIES

Injunctions-In order to obtain an injunction it must be shown that the injury complained of as
present or impending is such as by reason of its gravity, or its permanent character or both,
cannot be adequately compensated in the damages. If the injury is continuous, the court will
not refuse an injunction because the actual damages arising from it is slight.

In Padma Thakore And Anr v. Dilip Shah And Ors.,14

The defendants create nuisance to the residents of the apartments despite the notices, he started
continuing to do so, the facts of this case are very similar to the present case, there are problem
relating to hygienic and nuisance, it is started any acts that commit nuisance to others while
performing an action, it should be done in such a way that it doesn’t amount to annoyance or
nuisance to others and the courts declared injunctions.

From the above cited case, the same remedy can be applied here. Since despite the constant
notices from the Asso., there is no change in state of things, the dogs keep excreting in the park
and there were incidents of dogs bites, and noise is still created by dogs, so injunction should
be issued to stop these from further happening.

3. WHETHER THE RESPONDENT ACTED NEGLIGENTLY OR NOT?

Negligence is the breach of a duty caused by the omission to do something which a reasonable
man, guided by those considerations which ordinarily regulate the conduct of human affairs.15

2.1 That the respondent owes a legal duty towards the petitioners?

13 Ibid
14
2016 SCC Online Bom 4785.

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Yes the respondent own a legal duty towards the petitioners. The respondent’s legal duty is to
control the dogs, from braking particularly at night times, getting regular vaccination, has duty
to clean up the pet defecates in the community park and maintaining cleanliness.

2.2 .Is the respondent breaching the duty?

Yes the respondent has clearly breached the duties towards the petitioners. As a matter of he
did not maintain cleanliness in the park as the it stinking and generally filed with animal
excreta. The petitioners asked him to control the barking of the dogs as the children are having
as their exams and which can cause a disturbance .The petitioner also asked him to get proper
vaccination for the dogs, he declined.

2.3.That the consequence of breach of duty foresee any further damage?

If the consequence of breach of duty continues further, all these acts the barking and howling
of dogs at the residential area , stinking with animal excreta in the park and keeping number of
dogs in a residential area would also emit foul smell, injurious to the public health. As we can
assume that it is a township where aged people ,small children and all category of people might
live and these acts will certainly spoil the peaceful and congenial atmosphere of the public in
the residential area. Thus the respondent should reduce the number of dogs.

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PRAYER

In the light of the above submission and the authorities cited by the petitioners to the
Hon’ble court may kindly be pleased to allow

1. To grant permanent injunction restraining the respondent not to create any further
nuisance, and
2. Pass any such order or give certain directions which the Court thinks fit in the light of
justice, equity and good conscience.

Be pleased to considered
Counsel on behalf of the Petitioner

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