6TH NOVICE INTRA MOOT COURT COMPETITION, 2018

R- 18llb065

BEFORE THE HON’BLE CIVIL COURT

IN THE MATTERS OF

JUNGPURA TOWNSHIP RESIDENTS’ WELFARE ASSOCIATION ..PETITIONER

v.

JIDH KUMAR ….RESPONDENT

ON THE SUBMISSIONS TO HON’BLE CIVIL COURT

UNDER SECTION 91 OF THE CIVIL PROCEDURE CODE

WRITTEN SUBMISSION ON THE BEHALF OF RESPONDENT

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CONTENTS

TABLE OF ABBREVIATIONS.............................................................................................3
INDEX OF AUTHORITIES...................................................................................................4

STATEMENT OF JURISDICTION ................................................................................ 6

STATEMENT OF FACTS ............................................................................................... 7

STATEMENT OF ISSUES .............................................................................................. 9

SUMMARY OF ARGUMENTS .................................................................................... 10

ARGUMENTS ADVANCED ......................................................................................... 11

1.1 THAT JIDH KUMAR’S DOGS ARE NOT LIABLE FOR THE MAN-
ANIMAL CONFLICT ....................................................................................................... 11
1.1.1 LIABILITY FOR KEEPING ANIMALS ‘MASUETAE NATURAE’ ................. 11
1.1.2 ANIMAL GUIDELINES ..................................................................................... 15
1.1.2.1 WITH RESPECT TO DOGS AND PET OWNING RESIDENTS ........... 15
2.1 THAT JIDH KUMAR IS NOT LIABLEFORNUISANCE................................ 17
2.1.1 NOISE................................................................................................................ 17
2.1.1 ANIAML WELFARE GUIDELINES............................................................ 17
2.1.2 LAND WHICH IS ALLOTED FOR RECREATIONAL PURPOSES OR
PARK, SAME CANNOT BE ALLOTED FOR BUILDING PURPOSES... 18
PRAYER................................................................................................................................20

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TABLE OF ABBREVIATIONS

S.NO. ABBREVIATION FULL FORM

1. & And

2. AIR All India Reports

3. ALL Er All England Law Reports

4. Ed. Edition

5. HC High Court

6. Hon’ble Honorable

7. i.e. That is

8. Ltd. Limited

9. p. Page No.

10. Pvt. Private

11. SCC Supreme Court Cases

12. SC Supreme Court

13. V. Versus

14. Ors. Others

15. Co. Company

16. D.C.F District Consumer Forum

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INDEX OF AUTHORITIES

STATUES

• The Prevention of Cruelty to Animals Act, 1960

•Article 51A (g)

BOOKS REFERRED

• Ratanlal & Dhirajlal, Law of Torts , (27th edition, Lexis Nexis)

• Winfield and Jolowicz, Tort, (18th ed. Thomas Reuter Ltd, London,2010)

• Dr . J. N. Pandey , The Constitution Law Of India, (46th ed. Central Law Agency,
2009)

WEBSITES

• www.heinonline.com

• www.manupatrafast.com

• www.westlaw.com

• www.scconline.com

CASES CITED

• Mcquaker v. Goddard, 1940 1 K.B. 687:44TLR98

• Filburn v. People’s Palace and Aquarium Co Ltd (1890) 25 Q.B.D. 258.
• Manton v. Brocklebank, 1923 2 K.B.212.
• Searle v. Wallbank, 1947 A.C. 341:1947 1 All E.R. 683
• 11 Sri. Ajay Madhusudan Marathe v. New Sarvodaya CHS Ltd
(2010),D.C.F.160.(India).
• Virender Gaur and Ors. v. State of Haryana and Ors. (1995) 2 SCC 577

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ARTICLE / JOURNELS
• Ohio State Law Journal by John

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STATEMENT OF JURISDICTION

The Respondent appear before the Hon’ble civil court in accordance with Section 91 (2) of
the Civil Procedure Code, 1908.
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.

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STATEMENT OF FACTS

Jidh Kumar, an author who writes about pet grooming and activities for pets. In 2015, he
bought a flat in the township of Jungpura Castle. Sole purpose of his living was to nurse the
disabled animals. His love for animals started in 2013, with a challenge that he created called
“Feed Bucket Challenge”, an year after that he adopted 3 dogs and started another challenge
called “Food and Blanket Challenge”, but it was not that big of a hit but he became famous in
return.
He moved out of his old apartment due to a lot of complaints from his neighbours regarding
the disturbance caused by his dogs. He moved into Jungpura Castle in 2015, with his 3 dogs.
The main reason behind buying this new flat was that there was a large park situated in the
centre of the township, and his dogs will be able to enjoy the clean environment, and he could
see that there were a lot of people who own pets in Jungpura Castle.

He had a YouTube channel by the name ‘Dog’s Jidh’, about pet grooming. By December
2016, he adopted 16 dogs, most of which were disabled. All his dogs used to answer nature’s
calls during that walk in the park. In July 2017, he received a few complaints from his
neighbours, and was asked by Residents’ Welfare Association of Jungpura Township to
reduce the number of dogs by offering them for adoption and also to get his dogs vaccinated
for the safety of the residents to which he d eclined saying that there was no such incident
regarding his dogs going out of control. A new block of apartments was built in the
Township, which reduce the size of the park to one fourth of the original size. Elections for
Residents’ Welfare Association of Jungpura Township were held in January 2018, in which
new members were elected who stated that all the residents should be allowed to enjoy the
premises to the fullest possible extent. In March 2018, the Association sent a notice to Jidh
Kumar for controlling his dogs basing on complaints that they received, to which Jidh Kumar
replied that it is natural for dogs to bark, and one cannot control the noise being made by
them.

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In June 2018, other than Jidh Kumar only three other residents had pets. All three had one
dog each. The Association asked Jidh Kumar to stop using the park and ensure that they
won’t harm anyone. To which Jidh Kumar said that the Association cannot dictate terms to
him. The Association has filed a suit against Jidh Kumar.

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STATEMENT OF ISSUES

ISSUE 1


WHETHER JIDH KUMAR’S DOGS ARE LIABLE FOR RISE IN MAN-ANIMAL
CONFLICTS IN JUNGPURA CASTLE?

ISSUE 2

WHETHER JIDH KUMAR IS LIABLE FOR NUISENCE?

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SUMMARY OF ARGUMENTS

1. THAT JIDH KUMAR’S DOGS ARE NOT LIABLE FOR THE MAN-
ANIMAL CONFLICT .

It is humbly submitted before the Hon’ble civil court that dogs comes under the
category of ‘manstuetae naturae’ and law assumes that animals under this category
are not of a dangerous nature, and one who keeps an animal of this kind is not held
liable for the damage it may do, unless he new that it was dangerous.

It implies, Jidh Kumar’s dogs are not liable for the man-animal conflict, since he had
no knowledge of his dogs being ferocious in nature.

2. THAT JIDH KUMAR IS NOT LIABLE FOR NUISENCE.

It is humbly submitted before the Hon’ble civil court that, a person is guilty of a
public nuisance who does an 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, 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.

It implies, Jidh Kumar is not liable for nuisance it natural of dogs to bark.

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ARGUMENTS ADVANCED

1.1 THAT JIDH KUMAR’S DOGS ARE NOT LIABLE FOR THE MAN-ANIMAL
CONFLICT

1. It is humbly submitted before the Hon’ble civil court that the liability of the defendant
under the ‘Scienter Rule’ depends upon the knowledge of the dangerous character of the
animals which he knows or ought to know to be having a tendency to do the harm, he is
liable.1 For the purpose of this rule, the animals have been divided into two categories
namely,
(a) Animals ferae naturae, i.e., animals dangerous by nature; and
(b) Animals mansuetae naturae, i.e., animals harmless by nature.

2. Dogs comes under the category of animals mansuetae naturae, i.e., animals harmless
by nature.

1.1.1 LIABILITY FOR KEEPING ANIMALS ‘MASUETAE NATURAE’

3. It is submitted before this Hon’ble Court that, for making the defendant liable in respect
of the damage done by an animal belonging to the class of harmless or domestic animals,
two things have to be proved:

4. That the animals in question had a vicious propensity which is not common to
animals of that species; and that the defendant had the actual knowledge of the viciousness.

1
Ratanlal &Dhirajlal(ed), The law of Torts p. 558 (27th edition, Lexis Nexis)

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5. It is submitted that the law assumes that animals belonging to this class such as sheep,
horses, oxen, camels, dogs, etc., are not of a dangerous nature, and only one who keeps an
animal of this kind is not liable for the damage it may do, unless he knew that it was
dangerous.2

6. Also contended that, it not being usual for dogs, cats, or horses, or rams, or bulls, or
camels, to attack human beings, the plaintiff complaining of such injury from such animals
must be established that the defendant knew they were exceptionally savage, and prone to
injure mankind.3

7. Where an animal has been found by its owner to possess such a nature, it passes into
the class of animals which the owner keeps at his peril.4

8. If the animal kept belongs to a class which, according to the experience of mankind, is
not dangerous and not likely to do mischief and if the class is dealt with by mankind on that
fooling, a person may safely keep such an animal unless he knows that the particular animal
that he keeps is likely to do mischief. 5

9. Dogs are not of dangerous nature, and anyone who keeps an animal of this kind is not
liable for the damage it may do unless he knew that it was dangerous.

10. Taking into account the case of Mcquaker v Goddar6, wherein the defendant was the
proprietor of a zoological garden near London, where a camel enclosure, fenced in by wire
netting about six feet high, contained an Arabian camel. The plaintiff, who was lawfully in
the garden as a visitor, after having had lunch there, fed the camel with three apples, and as
he was giving it a fourth it caught his hand in its teeth, biting and crushing it severely. In an
action by the plaintiff against the defendant for damages for personal injuries the plaintiff
called witnesses who stated that the camel was an animal of uncertain temper and liable to
bite human beings; but the defendant called two witnesses having great experience and expert

2
Ratanlal &Dhirajlal(ed), The law of Torts p. 559 (27th edition, Lexis Nexis).
3
Ratanlal &Dhirajlal(ed), The law of Torts p. 559 (27th edition, Lexis Nexis).
4
Ratanlal &Dhirajlal(ed), The law of Torts p. 559 (27th edition, Lexis Nexis).
5
Ratanlal &Dhirajlal(ed), The law of Torts p. 559 (27th edition, Lexis Nexis).
6
Mcquaker v. Goddard, 1940 1 K.B. 687:44TLR98 .

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knowledge of camels, who stated that the camel had no natural tendency to bite human
beings, and that camels did not exist anywhere in the world as wild animals, but only under
the control and in the service of man.
There was no evidence that the defendant knew that the camel which bit the plaintiff had
previously bitten any one or was otherwise dangerous.
The Court of Appeal, on the facts, of which the Court, assisted by the evidence, was entitled
to take judicial notice, that the camel is not a wild animal in any part of the world, and that a
camel is a domestic animal; and, as there was no evidence that the defendant had any
knowledge that the camel in question had previously shown any vicious propensity, that the
defendant was not liable for the plaintiff's injuries.

11. It is submitted that in the present case at hand, that dog is not a wild animal in any
part of the world, and dog is a domestic animal; and it is nowhere to be mentioned in the
moot proposition that conflicts raised were due to Jidh Kumar’s dogs.

12. It is submitted that hence, Jidh Kumar is not liable for the conflicts between man and
animals as there is no evidence that the acts were committed by the respondent’s dogs.

13. At common law most courts held that a defendant was not liable for injuries caused by his
dog unless he had knowledge of the vicious propensities of the animal. After he knew that
the dog had bitten or would bite, he kept the dog at his peril and was liable for the
damage done. The same result was sometimes reached in a more round-about way by
using the language of negligence , and saying that defendant's liability depended on
negligence, but that if scienter were proved, negligence would be conclusively presumed.
This approach was sometimes misunderstood, as in the Ohio case of Hayes v. Smith,'
where the court held that a defendant would not be liable for keeping a known vicious
dog unless he was negligent in the keeping.

14. Taking into account the case of Filburn v. People’s Palace and Aquarium Company
Limited7, Lord Esher M.R. said that as to first category of animals,

7
Filburn v. People’s Palace and Aquarium Co Ltd (1890) 25 Q.B.D. 258.

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(a) “a person who keeps an animal belonging to that class must prevent it from doing
injury, and it is immaterial whether he knows it to be dangerous or not”. As to the second
category of animals, Lord Esher said that “the law assumes that animals belonging to it are
not of a dangerous nature, and, anyone who keeps an animal of this kind is not liable for the
damage it may do, unless he knew it was dangerous”.

15. It is submitted that in the present case, dogs belong to mansuetae naturae and Jidh
Kumar had no knowledge of his dogs being ferocious in nature. So, there is no scope of
liability of the respondent as his pets were domestic and not ferocious in nature.

16. Taking into account the case of Manton v. Brocklebank8, wherein the Court has held
that,
(a) “the tendency to kick and bite other animals is common to all the horses, and thus,
the defendant could not be held not liable.”
It is submitted before this Hon’ble Court that, in the present case, the defendant owned a
number of dogs and even if they were not ferocious by nature, they inhibit a tendency to bite.

17. On the very first hand, when the Welfare Association has allowed the dogs into the
park and later diminished the area to one-fourth of its original area9, they owned a duty to
care. Since any reasonable man would foresee the consequences.

18. In the case of Searle v. Wallbank10, wherein the court has been held that,
(a) “a person keeping a domestic animal on his land on a highway has no liability
towards the users of highway if his animals stay on the highway. In that case, the plaintiff
was going on a highway on his bicycle and the defendant’s horse escaped through a gap in
the fence to the highway without the defendant’s negligence and injured the plaintiff by
colliding against him. The defendant was held not liable”
In the present case, Jidh Kumar have been using the park for his dogs so, that they can
defecate and can go for a morning walk. It is natural for dogs to defecate in open and this act

8
Manton v. Brocklebank, 1923 2 K.B.212.
9
Fact sheet p. 2 ¶ 5
10
Searle v. Wallbank, 1947 A.C. 341:1947 1 All E.R. 683

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does not count as Jidh Kumar’s negligence as he is just using the park like everyone else.

1.1.2 ANIMAL GUIDELINES

19. According to the guidelines given by the Animal Welfare Board of India for
Residents’ Welfare Associations, Apartment Owners, Associations, etc are as given below:

1.1.2.1 WITH RESPECT TO DOGS & PET OWNING RESIDENTS

20. Use of parks by pets :

21. Seeking to ban pets from gardens or parks, is short-sighted. Firstly, you may or may
not have any manner of right over the garden or park in question. Secondly, pets that are not
properly exercised may exhibit aggressive conduct in frustration; and that cannot contribute
to the benefit of the residents. It may be better to arrive by consensus at timings acceptable to
all residents, when pets can be walked without inconvenience to other residents. These
timings can then be intimated to the general body.

22. Pet owners are advised to and must leash their pets in all common areas. However,
residents welfare association & apartment owners associations cannot insist on the use of
muzzles. Please do remember, the law already provides for penalties for negligent pet
owners, which the aggrieved parties can avail of.

23. Please bear in mind that in the absence of central or state laws requiring cleaning of
pet excreta by pet owners, residents welfare association & apartment owners associations
cannot impose any rule, regulation or bye-law, with respect to the same, or impose special
charges or fines on pet owners. 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.

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24. Pet owners are advised to ‘scoop the poop’ or together with residents welfare
associations & apartment owners associations, and other residents, experiment with the
creation of pet defecation areas within community premises, or arrive at other imaginative
solutions through consensus. Residents welfare association & apartment owners association
cannat however impose fines and special charges of any kind on pet owners, because there is
no mandate in law for the same.

25. Taking into account the case of Shri. Ajay Madhusudan Marathe v. New Sarvodaya
CHS LTD11, wherein the court has held that
(a) “as a consumer, a society cannot prohibit a resident from having pets and
utilising his/her facilities for pets12”
The Consumer Court ruled in favour of a resident who complained that the co-op society in
which he resided had passed a resolution preventing dogs from making use of the building’s
lifts. The society passed this resolution on the basis that the dog was not a consumer and his
usage of the lift could result in the spread of diseases and hence could be disallowed from
using the society’s facilities. To this, the Court declared that the owner, being a member of
the co-op housing society, was a consumer and hence, was well within his rights to bring his
complaint to the Consumer Court. In addition, the dog bore a valid Kennel Club of India
licence, was registered with the Municipal Corporation and had been issued a Health
Certificate by the Bombay Veterinary College. This ruling reiterated that residents couldn’t
be prevented from having pets and those pets were not to be banned from using lifts.

In the present case, Jidh Kumar is being restricted by the Residents’ Welfare Association to
use the park for defecation and urination of his dogs. Since, Jidh Kumar’s dogs are also a part
of the township, it is clear that according to the Animal Welfare Guidelines no one can
restrict animals/dogs from using the township to the fullest.

Hence, the respondent is not liable for Man-Animal conflicts.

11 Sri. Ajay Madhusudan Marathe v. New Sarvodaya CHS Ltd (2010),D.C.F.160.(India).
12
Consumer forum deL

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2.1 THAT JIDH KUMAR IS NOT LIABLE FOR NUISENCE.

1. It is humbly submitted before the Hon’ble civil court that, a person is guilty of a
public nuisance who does an 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, 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. Public nuisance does not create a civil cause of action for any person. In order that an
individual may have a private right of action in respect of a public nuisance-

i) He must show a particular injury to himself beyond that which is suffered by the
rest of public. If the alleged nuisance is, for instance, the obstruction of a
highway, it is not enough for him to show that he suffers the same inconvenience
in the use of the highway as other people do. He must show that he has suffered
some damage more than what the general body of the public had to suffer.
ii) Such injury must be direct, and not a mere consequential injury; as, where one
way is obstructed, but another is left open. In such a case the private and particular
injury is not sufficiently direct to give a cause of action. The injury must be shown
to be of a substantial character, not fleeting or evanescent.
Thus, in order to entitle a person to maintain an action for damage caused by that which is a
public nuisance, the damage must be particular, direct and substantial. The object of this rule
is to avoid multiplicity of litigation.

2.1.1 NOISE
3. Quietness and freedom from noise are indispensable to the full and free enjoyment of
dwelling-house. No proprietor has an absolute right to create noises upon his own

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land, because any right which the law gives is qualified by the condition that it must
not be exercised to the nuisance of his neighbours or of the public.

2.1.2 According to Animal Welfare Board’s guidelines for Allowing Pet Dogs in
the Public Parks13-
The Animal Welfare Board of India is a statutory body established in terms of
section 4 of the prevention of Cruelty to Animals Act, and these guidelines are
being issued in pursuance of section 9(K) of the said Act.

In furtherance of the spirit of co-existence and compassion for living creatures

endorsed by the constitution of India and particularly by Article 51(g), the scope
which have been substantially winded by the Hon’ble Supreme Court of India vide
its judgement dated 7th May, 2014, passed in the matter titled ‘Animal Welfare
Board of India Versus A. Nagaraja and Others’ , being Civil Appeal No. 5387 of
2014, the relevant portion of which is enclosed herewith, the Board states as
follows :

1) The number of people keeping dogs as companions is increasing every year. Most
dog owners live in apartments where there is no private space to exercise their
dogs. Walking them on pavement is difficult because of the flow of pedestrian
traffic and because the pavements are narrow. Moreover, pedestrians often feel
scared to come into close proximity with dogs. Therefore, it is most prudent that
dogs be taken to parks to exercise them. Needless to state, dogs that are not
properly exercised can turn aggressive, and it is also illegal to deny them the
exercise they require.

4. It natural for dogs to bark and one cannot ban an animal just because it is making a
noise as it is nowhere mentioned that barking of a dog is an offence. In India there is
no such law which says that barking of a dog is an offence.

13
Animal Welfare Board guidelines 2014

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5. It is stated that the sound made by dogs while barking is 95 deb if the observer is
standing a feet away this sound amounts to a person shouting. But in the proposition it
is given that the sound of dogs came from the respondents apartment which clearly
states that the dogs are way far than a feet away and are residing in the apartment
which does not amount to noise.

6. Article 51A of the constitution enjoins that it shall be the duty of every citizen of
India, inter alia, to protect and improve national environment including forests, lakes,
rivers, wildlife, and to have compassion for living creatures. These two Articles are not
only fundamental in the governance of the country but also it shall be duty of the State
to apply these principles in making laws.

2.1.3 A land which is allotted for recreational purpose or park, same cannot be
allotted for building purpose.

In the case of Administrative, Nagar Palika v. Bharat qous

The people were residing in illegal enactment and Public Interest was to be raised
was there or not and enactment of new building was illegal

In present case, the petitioner should be held responsible for building a new block on
a park which was the sole reason why Jidh Kumar bought the apartment. Building on
park was illegal.

In the case of Virender gaur & ors v. State of Haryana and ors. 14

The land which is allotted for recreational purpose or park , the same cannot be
allotted for building purposes.

In present case, park was reduced to ¾th of its original size and Jidh Kumar was
facing problems due to the reduction of the park as he his dogs were not able to enjoy
the environment to the fullest.

14
Virender Gaur and Ors. v. State of Haryana and Ors. (1995) 2 SCC 577

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PRAYER

Therefore in the lights of the issues raised, arguments advanced, and authorities cited, it is
humbly prayed that this Hon’ble court may be pleased to adjudge and declare that:

1. That Jidh Kumar’s dogs were not liable for the man and animal conflict.

2. That Jidh Kumar is not liable for the nuisance.

The court may also be pleased to pass any other order, which it may deem fit in the light of
justice, equity and good conscience.

All of which is most humbly prayed

COUNSEL FOR THE RESPONDENT

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