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ROLL NUMBER: 2018120

BEFORE THE HON’BLE JUNIOR CIVIL JUDGE COURT

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

v.

Jidh Kumar…………………………………………………………….……. (Defendant)

6th Novice Moot Competition, 2018

Memorial for the Defendant

(Counsel on the behalf of Defendant)

COUNSEL ON THE BEHALF OF DEFENDANT

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TABLE OF CONTENTS

 LIST OF ABBREVIATIONS ………………………………………………… 3

 INDEX OF AUTHORITIES…………………………………………………... 4

 STATEMENT OF JURISDICTION………………………………………....... 5

 STATEMENT OF FACTS…………………………………………………….. 6

 ISSUES RAISED……………………………………………………………… 7

 SUMMARY OF ARGUMENTS……………………………………………… 8

 ARGUMENTS ADVANCED …………………………………….……………9

 PRAYER…………………………………….………………………………... 14

COUNSEL ON THE BEHALF OF DEFENDANT

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LIST OF ABBREVIATION

 SECTION………………………………………………………………………......... §

 SUPERVISION, DIRECTION AND CONTROL…………………….…………..SDC

 WITH AMMENDMENT……………………………………………………….… WA

 PAGE NUMBER ………………………………………………………………..….. p.

 AND ………………………….……………………………………………………...&

 EDITION………………………………………………………....………………...edn.

 VOLUME …………..……………………………….……………………………...vol.

 HONOURABLE……………………………………………………………HON’BLE

COUNSEL ON THE BEHALF OF DEFENDANT

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INDEX OF AUTHORITIES

CASE LAWS

 Milkmen Colony Vikas Samati v. state of Rajasthan, SCC ONLINE, Jaipur High
court,2007.

 Balwanth Singh v. commissioner of police and others, SCC ONLINE, Jaipur High
Court,2013

STATUTES & LEGISLATIONS

 Civil Procedure Code, 1908.

 Dog Act, 1976 (WA).
 The prevention of cruelty to animals act, 1960

BOOKS, TREATISES & DIGEST

 Ratan Lal & Dhiraj Lal,The Law of Torts 27th edn., 2016
 Sir peter Henry Winfield, A text-book of the law of tort, 4th edn., 1948.

ARTICLES & JOURNALS

 Mr. Kunal Priyam, Miss. Nivedita Singh, Legality of Ill-Treatment of

Stray Dogs: A Study, Volume 7, July 2017
 Morgan Garvey, Judith Stella and Candace Croney, Auditory Stress:
Implications for Kenneled Dog Welfare, Department of Comparative
Pathobiology, College of Veterinary Medicine, Purdue University.

WEB SOURCES

 Hein Online (https home.heinonline.org/)

 West Law (www.westlaw.com/ )
 Lexis Nexis ( lexisnexis.in)

COUNSEL ON THE BEHALF OF DEFENDANT

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STATEMENT OF JURISDICTION

It is humbly submitted that Defendant has the honour to submit memorial to

the Hon’ble  Junior Civil Judge Court under § 91 of Civil Procedure Code 1908.

COUNSEL ON THE BEHALF OF DEFENDANT

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STATEMENT OF FACTS

I. Jidh Kumar lives in township of Jungpura Castle. He is very famous for his books on
pet grooming and activities for pets. He is of the view that his sole purpose of living
to nurse the disabled animals. His journey to a famous pet lover stated in 2013 with
Feed bucket Challenge by challenging a group of friends sharing a full bucket of
food. It was an instant hit and after a year he came up with a new challenge to adopt
stray dogs. It didn’t seek public attention as earlier and moreover there are posts on
social media regarding advantages and dangers in adopting stray dog.
II. He moved into jungpura castle with 3 dogs as large park is the main reason to buy
flat there and also he can see other people who owns pets in Jungpura castle. By
December 2016 , he had adopted 16 more dogs which are mostly disabled and living
with him in his flat. His daily routine used to start with waking up and taking all
dogs to park so that the dogs can used to answer nature’s calls and excrete and
urinate in the park.
III. In July 2017, a few complaints are lodged and Jungpura Township asked Jidh kumar
to reduce the number of dogs by offering them for adoption and get vaccinated. But
he declined saying that there was no single incident of his dogs going out of
control.In the meanwhile time a new block was constructed and by this park was
reduced to one-quarter of original size and there was rise in man-animal conflicts.In
January 2018 elections were held and new elected members made it clear that park
should be clean. In March 2018 basing on complaints association had sent a notice
for controlling dogs as the exam season for children is approaching as to which he
replied that it is naturals for dogs to bark and you can’t ask for control.
IV. By June 2018, it was found that park is getting spoiled and there was no clean place
for children to play and also association also found that apart from Jidh kumar only
three residents has pets. The state of things have not changed much even after a
month so the association filed a suit against Jidh kumar .

COUNSEL ON THE BEHALF OF DEFENDANT

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ISSUES RAISED

I.  WHETHER THE DOG ACT AMOUNTS TO NUISANCE OR NOT?

II. WHETHER THE RESPONDENT CAN DEFEND HIM UNDER

RIGHT TO PERSONAL LIFE & LIBERTY AND RIGHT TO

CARRY ANY OCCUPATION, TRADE AND BUSIINESS?

COUNSEL ON THE BEHALF OF DEFENDANT

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SUMMARY OF ARGUMENTS

I. WHETHER THE DOG ACT AMOUNTS TO NUISANCE OR NOT?

The law of the land says that barking is a natural form of expression for a dog
and must and has to be tolerated in a society. However, incessant barking can disturb
neighbours.
Hence pet owners are advised to make every effort to keep their dog quiet, especially during
night hours. The facts of the case do not record instances of incessant barking, especially
during
night hours and hence Jidh Kumar was well in control of his pets.

II. WHETHER THE RESPONDENT CAN DEFEND HIM UNDER RIGHT TO

PERSONAL LIFE AND LIBERTY AND RIGHT TO FREEDOM WHICH
INCLUDES RIGHT TO OCCUPATION, TRADE AND BUSSINESS?

Article 51A of the Constitutional Law of India, speaks about the duties of every
citizen of India. One of these duties includes having compassion for living creatures (Article
51 A (g) of the Indian Constitution). Those who look after animals and other creatures of God
are thus protected under the Constitution.

Article 19 of the Constitution of India, deals with right to freedom and in this freedom
are included the right to profession, occupation, trade and business. Therefore, it means that
every citizen has the right to occupation and if someone has taken the caring of animals as his
occupation, it is legal and he has every right to carry on with his occupation.

COUNSEL ON THE BEHALF OF DEFENDANT

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ARGUMENTS ADVANCED

ISSUE 1-WHETHER THE DOG ACT AMOUNTS TO NUISANCE OR NOT

1) Prior to the amendment of the Act, the definition of nuisance commonly relied upon
by local governments for ascertaining whether or not a dog was causing a nuisance by
barking was contained in ‘s.38(2)(b)’ of the Act.

2) Which provided a dog shall be taken to be a nuisance for the purposes of this
section if it creates a noise, by barking or otherwise, which persistently occurs or continues to
a degree or extent not normally habitual in dogs and has a disturbing effect on the state of
reasonable physical, mental or social well-being of a person.

3) For practical purposes, the most notable change to the definition is the removal of
the requirement that the barking must occur or continue to an extent not normally habitual in
dogs.

4) However, if a person charged with a dog nuisance offence called an expert witness
to give evidence that the amount of barking by the dog was within what would be considered
normal and a local government had no expert evidence to the contrary, a court may be
reluctant to find a charge proved on the basis that ‘normal’ barking by a dog could not be
considered to unreasonably interfere with the peace, comfort or convenience of any person.

5) Generally by the case of Campbell v. Paddington the plaintiff was the neighbour of
the Paddington and respondent used to have 7 dogs which used to bark usually by which
plaintiff got disturbed and filed a suit against defendant asking the defendant to vacate the flat
but the defendant pleaded that dog barking is natural and he pleaded that he will take
necessary steps and he made it clear that he will not vacate the flat. 1

 In the given facts he used to get a lot of complaints while he adopted just
three dogs in the challenge that was made by him i.e food and blanket
1
Ratan lal & Dhiraj lal, The law of torts, 27th edn., 2016.

COUNSEL ON THE BEHALF OF DEFENDANT

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challenge by his neighbors. Then he moved to the jungpura township and

there he adopted 16 dogs by December 2016. They are disabled mentally.
They are stray dogs . When posted the challenge food and blanket challenge
by adopting 3 stray dogs it was a big flop and even there were many posts on
social media about the disadvantages on adopting stray dogs. Without caring
any of these he adopted 16 dogs .

 Even in July 2017 on receipt of many complaints from the neighborhood the
welfare association of jungpura castle had formally asked jidh kumar to
reduce them and he didn’t listen to them and he replied strongly that  he can
control all his dogs. Then the welfare association left him by taking his
words.

 Then in 2018 march he again got many complaints that the  barking of dogs
is more and children could not concentrate on their studies and as it is exam
time and again he did not agree for that as the nature of dogs is to bark and he
told that how can he control it . this leads to the negligence on part of Jidh
kumar.
 Prior to the amendment of the Act, the definition of nuisance commonly
relied upon by local governments for ascertaining whether or not a dog was
causing a nuisance by barking was contained in s.38(2)(b) 2 of the Act, which
provided.
 “A dog shall be taken to be a nuisance for the purposes of this section if it
creates a noise, by barking or otherwise, which persistently occurs or
continues to a degree or extent not normally habitual in dogs and has a
disturbing effect on the state of reasonable physical, mental or social well-
being of a person.”

 In order to show that a dog was being a nuisance within the meaning of that
definition, it was necessary to call expert evidence to show that the barking
of the dog was persistently occurring or continuing to such a degree or extent
not normally habitual in dogs and to call a witness (usually a neighbour) to

2
Dog Act, 1976

COUNSEL ON THE BEHALF OF DEFENDANT

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give evidence that the barking had had a disturbing effect on their physical,
mental or social wellbeing. 

But here I conclude that Dog barking doesn’t amount to nuisance because Dog
barking is very natural in all dogs and it is a thing given by nature. So Dog barking
doesn’t amount to nuisance by the above mentioned section.

COUNSEL ON THE BEHALF OF DEFENDANT

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ISSUE II-
WHETHER THE RESPONDENT CAN DEFEND HIM UNDER RIGHT
TO PERSONAL LIFE AND LIBERTY AND RIGHT TO FREEDOM WHICH
INCLUDES RIGHT TO OCCUPATION.

 Article 51A of the Constitutional Law of India, speaks about the duties of
every citizen of India. One of these duties includes having compassion for
living creatures (Article 51 A (g) of the Indian Constitution). Those who look
after animals and other creatures of God are thus protected under the
Constitution.

 Article 19 of the Constitution of India, deals with right to freedom and in this
freedom are included the right to profession, occupation, trade and
business. Therefore, it means that every citizen has the right to occupation
and if someone has taken the caring of animals as his occupation, it is legal
and he has every right to carry on with his occupation.

 Under the Govt. of India, Animal Birth Control Rules, 2001  (drafted under
the Indian Prevention of Cruelty to Animals Act 1960), no sterilized dogs can
be relocated from their area. As per five different High Court orders,
sterilized dogs have

 to remain in their original areas. If the dog is not sterilized, the Society can
simply ask an animal welfare organization to sterilize and vaccinate the dog.
 They cannot relocate them. Relocation is not permissible, as it would cause
more problems such as an increase in dog bites as new dogs will move into
the area who are unfamiliar with residents and therefore more likely to be
hostile. All problems of stray animals have to be handled within the
institutional framework available.
 No association, recognized or unrecognized, shall take recourse to any action
regarding stray animals on their own, either themselves or through any
person employed by them like security guards. While residents and
Associations are free to address institutional agencies for redressal of

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grievances in this matter, no resident/association will interfere with the

freedom of other residents in caring and attending animals. So hereby the
respondent can defend him under Right to Personal life & Liberty because it
is subjected to his own life and no one has right to infringe it and he can also
defend under right to freedom which includes right to carry an occupation
and trade.3

3
Morgan Garvey, Judith Stella and Candace Croney, Auditory Stress: Implications for Kenneled Dog Welfare,
Department of Comparative Pathobiology, College of Veterinary Medicine, Purdue University.

COUNSEL ON THE BEHALF OF DEFENDANT

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PRAYER

Therefore, in the light of the issues raised, arguments advanced and authorities cited, the
Counsel for the Respondent humbly prays before The Hon’ble Junior Civil Judge Court
pleased to hold, adjudge and declare:

1. Rights of the defendant

2. Acts of animals are justified

AND/OR

Pass any orders which the Court may deem it fit in the interest of justice, equity, and good
conscience. And for this act of kindness, your Respondent in duty bound shall ever pray.

All of which is humbly prayed.

Counsel for Defendant.

COUNSEL ON THE BEHALF OF DEFENDANT