INTERNAL MOOT COMPONENT-2019

BEFORE THE HON’BLE SUPREME COURT OF INDIA

CIVIL APPELLANT JURISDICTION

CIVIL APPEAL NO.__OF 2019

UNDER ARTICLE 136 OF THE INDIAN CONSTITUTION

MR.KALYAN ………………………………………………APPELLANT

V.

MR.DINESH ……………………………………………..RESPONDENT

UNDER SUBMISSION TO THE HON’BLE CHIEF JUSTICE AND HIS COMPANION

JUSTICES TO THE SUPREME COURT OF INDIA

MEMORANDUM ON THE BEHALF OF THE APPELLANT

MEMORIAL ON THE BEHALF OF THE APPELLANT

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TABLE OF CONTENT
1. List of abbreviation

2. Index of authorities
3. Statement of jurisdiction
4. Statement of facts
5. Statement of issue
6. Statement of arguments
7. Arguments advanced
1. Whether the appeal filed against Mr Dinesh is maintainable
1.1 Negligence by Mr.Dinesh
2. Whether Mr Dinesh is personally entirely not free from fault
2.1 Dealing with the dangerous thing
2.2 Not an Act of God
3. Whether the escape of a dangerous thing is a course of natural use of land
3.1 Sufficient care
3.2 Natural use of land
4. Whether Mr Dinesh is liable for the deteriorating condition of Kalyan’s son
8. Prayer

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LIST OF ABBREVIATION

Word Abbreviation
Supreme Court SC
All India report AIR
Allahabad high court All
High Court HC
Delhi DIL
Supreme court cases SCC
Calcutta Cal
House of lords HIL
Honourable Hon’ble
Times law report TLR
Limited Ltd.
Law report LR
Private Pvt.
Privy council PC
Lahore Lah
Exchequer Ex
Hurlstorn&coltman H&C
Indian cases IC
Edition Ed

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INDEX of AUTHORITIES
STATUTES REFFERRED
1. CIVIL PROCEDURE CODE,1908

CASES REFERRED
1. Jacob Mathew v. state of Punjab (AIR 2005 SC 3180)
2. Relends v. Fletcher (1868 L.R. 3H.L. 330)
3. Read v. Lyons & co. (1947 A.C.156)
4. Nichols v. Marsland (1876 2 EX D 1)
5. Ramalinga Naadr v. Narayan Reddiar (AIR 1971 Kerala 197)
6. Kallulal v. Hemchand (AIR 1958 MP 48)
7. Tennent v Earl of Glasgow (1864 2 M HL 22 26-27)
8. T.C.Balakrishnan menon v T.R. Subramanian (AIR 1968 Kerala 151)
9. Noble v Harrison (1926 2 KB 332)
10. Sochacki v Sas (1947 1 ALL ER 344)
BOOKS
1. Law of Torts and Consumer Protection Act by Dr.J.N.Pandey
2. The Law of Torts by M.N.Shukla
3. Law of Torts by R.L.Anand
4. Law of Torts by Ramaswamy Iyer
5. Law of Torts and Consumer Protection by S.K.Kapoor
6. Introduction to the Law of Torts by Avtar Singh

ELECTRONIC SOURCES
1. http://www.supremecourtonline.com/
2. http://www.stastia.com
3. http://www.indiankanoon.org/
4. http://legal-dictionary.thefreedictionary.com/
5. http://india.embassy.gov.au/ndli/holidays2016.html.

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STATEMENTS of JURISDICTION

The Hon’ble Supreme Court of India has the jurisdiction in this matter under
Article 136 of the Indian Constitution . Article 136 reads as follow:
136. Special leave to appeal by the Supreme Court
(1) Notwithstanding anything in this Chapter, the Supreme Court may, in its discretion, grant
special leave to appeal from any judgment, decree, determination, sentence or order in any
cause or matter passed or made by any court or tribunal in the territory of India
(2) Nothing in clause ( 1 ) shall apply to any judgment, determination, sentence or order
passed or made by any court or tribunal constituted by or under any law relating to the Armed
Forces

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STATEMENTS of FACTS

1. Mr Dinesh is a software engineer in Vishakhapatnam.He resides in the posh locality of

MVP colony.His neighbor is Mr.Kalyan, a businessman, their houses are adjacent to each
other and their gardens are separated by a wooden fence.Mr. Dinesh has a hobby of raising
different types of flowering plants in his garden and had a heart shaped flower bed adjacent to
the wooden fence, on the other hand, Mr. Kalyan was fond of growing vegetables which lay
alongside the fence.

2. In the rainy season a lot of weed started growing in and around the flower bed, to get rid
of them Mr Dinesh purchased a powerful weed killer called ‘Slaughter’. Since it was a
poisonous substance there were express warnings on the canister which stated “wash hands
thoroughly after use”.

3. Mr Dinesh sprayed ‘Slaughter’ liberally on this flower beds.however, later that day, rain
washed some of the weed killer under the fence onto Kalyans’ vegetable patch which
currently consisted of a patch of lettuce. The crops were eventually consumed by the Kalyan
family. The following day Mr Kalyan’s six year old son, Akira Anand, began to complain of
stomach pains and was later admitted into the hospital due to his deteriorating condition. The
medical evidence conclusively traced the cause of the illness to the weed killer.

4. An action was brought on behalf of Akira Anand by Mr. Kalyan against Mar. Dinesh
based on the rule laid down in Rylands v. Fletcher. At the first instance the lower natural use
of the land and that the rule in Rylands v. Fletcher could not be used to obtain damages. A
further appeal in High Court was also dismissed, however, Mr. Kalyan was granted to appeal
in Supreme Court.

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STATEMENT of ISSUE

ISSUE I:

Whether Appeal filed against Mr.Dinesh is maintainable

ISSUE II:

Whether Mr.Dinesh is personally entirely not free from fault.

ISSUE III:

Whether the escape of the dangerous things in the course of natural use of land.

ISSUE IV:

Whether Mr.Dinesh is liable for deteriorating condition of Kalyan’s son.

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SUMMARY of ARGUMENTS

ISSUE I:
Whether appeal filed against Mr Dinesh is maintainable.
It is humbly submitted before the Hon’ble Court that, appeal is maintainable. Mr. Dinesh is
negligent while spraying and through his act Mr. Kalyan’s six year old son Akira Anand
began to complain of stomach pain and admitted to hospital. The weed killer was so powerful
that it may take the life of any person.
ISSUE II:
Whether Mr Dinesh is personally entirely not free from fault.
It is humbly submitted before the Hon’ble Court that, Mr Dinesh is not free from fault. Mr.
Dinesh is dealing with dangerous things like a powerful weed killer named ‘slaughter’ so he
ensure a safety to his neighbour and if any this wrong happens due to the action done by him
he should be held liable.
Issue III
Whether the escape of dangerous things in the course of natural use of land.
It is humbly submitted before the Hon’ble Court that, spraying slaughter carefully and in
proper amount comes under natural use of land but spraying dangerous things without care
and in heavy amount is non-natural use of land so the defendant did not take proper care and
this washed some of the weed killer with rain under the fence onto vegetable patch.
ISSUE IV:
Whether Mr Dinesh is liable for deteriorating condition of Kalyan’s son.
It is humbly submitted before the Hon’ble Court that, Mr Dinesh is liable for deteriorating
condition of Kalyan’s son by committing act which is very dangerous and make the six year
old child Akira Anand hospitalized with stomach pain complaint and also for using such
powerful weed killer without proper care and spraying liberally.

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ARGUMENTS ADVANCED

I.WHETHER APPEAL FILED AGAINST MR DINESH IS MAINTAINABLE

The present appeal is maintainable Mr. Dinesh is negligent while spraying and through his
act Mr. Kalyan’s six year old son began complain of stomach pain and hospitalized.
1.1 NEGLIGENT ACT BY MR. DINESH.
“Negligence is breach of duty caused by the omission to do something which a reasonable
man, guided by those considerations which ordinarily regulate the conduct of human affairs
would do, or doing something which a prudent and reasonable man would not do. Actionable
negligence consists in the neglect of the use of ordinary care or skill towards a person to
whom the defendant owes the duty of observing ordinary care and skill, by which neglect the
plaintiff has suffered injury to his person or property.” 1
“Negligence, in current forensic speech, negligence has three meanings, these are:
(i) A state of mind, in which it is opposed to intention
(ii) Careless conduct
(iii) The breach of duty to take care that is imposed by either common or statue law.” 2

As we have seen negligence include careless conduct, breach of duty and defendant suffered
loss. As all the essentials were done by Mr. Dinesh, he sprayed slaughter liberally without
taking proper care and caution despite knowing that it is a powerful weed killer. Mr. Dinesh
owed a duty of care “while spraying” towards plaintiff there is no rule of law defining such
duty that can harm a person.the act done by Mr. Dinesh is completing all the essentials that is
been required to make an act a negligence so the act done by Mr. Dinesh falls under
negligence also. He should take proper care and caution as the weed killer is very dangerous
as clearly stated.

II. WHETHER MR DINESH IS PERSONALLY ENTIRELY NOT FREE FROM

FAULT

2.1.DEALING WITH A DANGEROUS THING

It is being admitted by ordinary rule of law that defendant was personally entirely free from
fault. If he takes reasonable care defendant owed no duty to the plaintiff beyond that of
reasonable care, which would be a question for the bench but if the man dealing with a

1
JacobMathew v. state of Punjab AIR 2005 SC 3180
2
Charlesworth & Percy

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dangerous thing like a powerful weed killer should be held to a stricter rule that of ensuring
safety to his neighbour.
True rule of law is that the person who, for his own purpose brings on his land and collect
and keeps there anything likely to do mischief if it escape must keep it at his peril, and if he
does not do so is prima fasie answerable for all the damages which is the natural
consequence of it escapes3. He can excuse 4himself by showing that the escape was owing the
defefant’s fault or perhaps that the escape was the consequence of vis major or the act of
God. But as nothing of this sort exist here it is unnecessary to enquire what excuse would be
sufficient.
2.2 NOT AN ACT OF GOD OR VIS MAJOR

“ACT OF GOD is a defence in the rule of strict liability also.an act of god in legal sense,
maybe defined as an extraordinary occurrence of circumstance, which could not have been
foreseen and which could not have been guarded against, or, more accurately, as an
intervention, and which could not have been avoided by any amount of foresight and pains
and care reasonably to be expected of the person sought to be made liable for it, or who seeks
to excuse himself on the ground of it. The occurrence need not be unique, nor need it be one
that happens for the first time; it is enough that it is extraordinary, and such as could not
reasonably be anticipated…….and it must not arise from the act of man.”5

The essentials of act of god are

i. An act should result from natural force.6
ii. There should be no human intervention. 7
iii. The occurrence must be extraordinary and not one which could be anticipated and
reasonably guarded against. 8
In this case the defence of an act of god is not been attracted because the rainfall was not
extraordinary in nature. The rainfall in rainy season is normal. An act of god is also the
defence for strict liability rule.it is used under the
“Circumstances which no human foresight can provide against, and of which human
prudence is not bound to recognize the possibility.” 9
In the case of Mr. Dinesh it is clearly mentioned that the “slaughter”,i.e., a powerful weed
killer was a poisonous substance and also the express warning on the canister with stated that
slaughter was poisonous to human and also clearly stated that wash hand after use.although
after the clear warning Mr Dinesh sprayed slaughter liberally on his flower bed.
3
Relends v. Fletcher 1868 L.R. 3H.L. 330
4
Read v. Lyons & co. 1947 A.C.156
5
Explained in Halsbury’s Law of England
6
Nichols v. Marsland 1876 2 ex D 1
7
Ramalinga Naadr v. Narayan Reddiar AIR 1971 Kerala 197
8
Kallulal v. Hemchand AIR 1958 MP 48
9
Tennent v earl of Glasgow 1864 2 M HL 22 26-27

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III. WHETHER THE ESCAPE OF THE DANGEROUS THINGS IN THE COURSE

OF NATURAL USE OF LAND
The duty of ensuring safety is a heavy burden and bears hardly on the innocent.duty is not
only to guard against doing damage through the exercise of due care and diligence, but,in
certain cases absolutely to prevent it by using sufficient care.
3.1 SUFFICIENT CARE
Almost anything which a man can bring on his land or accumulate dare will do mischief if it
escape. If it be said that the rule is only intendent to apply to cases where the thing brought on
the land is of such a character that bare is danger of it breaking loose and danger of its doing
harm if it does so then the question would seem to be rather a question of the degree of care
or diligence to be employed in preventing its escape and thus to be determined by the
negligence of a defendant.perhaps it can only be said that where the act of defendant is
manifestly likely to cause a damage,a stricter rule is expedient and the defendant will not be
allowed to say he used reasonable care or due diligence.
3.2 NATURAL USE OF LAND
“The defendant might lawfully have used their close for any purpose for which it might in the
ordinary course of the employment of land be used and if in what I might term the natural
user of that land. There had been any accumulation of water either on the surface or
underground and if by the operation of the laws of nature that accumulation of water had
passed of into the close occupied by the defendant the defendant could not complain that the
result had taken place.”10 Fletcher v. Rylands, being understood, or misunderstood, to
establish the rule that, where the owner of land goes beyond its “natural user,” or makes a
“non-natural use” of it, he acts at his peril, and is liable for the resulting damage caused to
his neighbor without regard to any question of his negligence, the supreme court of
Pennsylvvania, as was pointed out by the author of a very thoughtful note to Robb v.
Carnegia, 31 A.L.R.N.S.p.38, has gone, in Sanderson’s case, to the full extent of holding that
the converse of this rule applies, viz: that wherever the owner of land makes a “natural use”
of his land, he is not, in the absence of negligence or malicious intent, liable for the damage
which necessarily result therefrom .Mr. Dinesh sprayed liberally that is why the dangerous
weed killer escaped from his land to the plaintiffs land therefor Mr. Dinesh is not excused
from his fault.as the water cannot be discharged by gravity alone it must necessarily as the
part of liberal spraying and rain lifted it to the surface and hence be discharged through the
ordinary natural channel. Here is the case the defendant’s liability Would be the same
whether he kept the dangerous thing on his land or in his pocket. If a man handles a gun he
must not let it go off if he makes a plaything of a snake, he must hold it fast: if he
accumulates an enormous mass of water, he must keep it in bounds. The ordinary actions of

10
Laid down by lord chancellor cairns

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mankind are not fraught with danger to his fellows, and he is only bound to conduct himself
with the ordinary prudence of a reasonable man: his extraordinary acts are subject to an
extraordinary rule, mere prudence is not enough; if he might have in any possible way,
prevented the evil, he is bound to do so and is liable for the consequences if he does not do
so, the act of god, for which no one is responsible, is an expression which originated at a time
when men had very different ideas than at this present. We mean by it, vis major, an
unavoidable, overpowering force, rendering control impossible.If the proper care of the land
is not been done11 it became non -natural12 use.13

IV.WHETHER MR DINESH IS LIABLE FOR THE DETERIORATING CONDITION

OF KALAYAN’S SON

Mr. Dinesh is liable for the disorienting condition of the son, Akira Anand. Any defences i.e
act of God or negligence is not been entitled because Mr. Dinesh brought dangerous thing on
his land and that thing escaped by his fault because he liberally sprayed and not taken proper
care and caution and there is non- natural use of land. These all things are competing the
essentials of the rule of strict liability. Therefore he is liable for the act that he has done. He is
been attracted by various faults and his negligent act make the child hospitalized.

11
T.c balakrishnan menon v t.r Subramanian AIR 1968 Kerala 151
12
Noble v Harrison 1926 2 KB 332
13
Sochacki v sas 1947 1 ALL ER 344

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PRAYER

In the light of the issues raised, arguments advanced and authorities cited, may this Hon’ble
Court is pleased to:
1. Hold Mr. Dinesh liable for deteriorating condition of six year old son of Mr Kalyan.
2. Hold Mr. Dinesh liable for strict liability rule i.e. bringing dangerous things and
“slaughter” and escape of that thing in the plaintiff’s garden.
3. Hold Mr. Dinesh liable for spraying such a dangerous thing very liberally without taking
any due care
AND/OR

Pass any other order that it deems fit in the interest of Justice, Equity and Good Conscience.
And for this, the Appellant as in duty bound, shall humbly pray.

COUNSELS FOR THE APPELLANT

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