1479P

IN THE LEARNED DISTRICT COURT OF JAIPUR

AT JAIPUR

CIVIL SUIT NO. XXX/2017

Under Section 6,9,15,16 and 19 of the Code of Civil Procedure, 1908

IN THE MATTER OF

MRS. SUNIL GOSWAMIPLAINTIFF

V.

MS. CHERYL THADANI...DEFENDANT

MEMORIAL ON BEHALF OF PLAINTIFF

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 TABLE OF CONTENTS

TABLE OF CONTENTS.................................................................................................................ii

INDEX OF AUTHORITIES..........................................................................................................iii

STATEMENT OF FACTS..............................................................................................................iv

STATEMENT OF JURISDICTION................................................................................................v

ISSUES OF CONSIDERATION....................................................................................................vi

I. Whether sunil goswami is entitled to damages?..................................................................vi

SUMMARY OF ARGUMENTS...................................................................................................vii

I. Whether sunil goswami is entitled to damages?.................................................................vii

ARGUMENTS ADVANCED..........................................................................................................1

I. Whether sunil goswami is entitled to damages?...................................................................1

PRAYER..........................................................................................................................................2

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 INDEX OF AUTHORITIES

Cases

Arlowski v. Foglio, (1926) 105 Conn. 342 .1

Hackshaw v Shaw (1984) HCA 84....1

Revill v Newbery [1996] 2 WLR 239.1

Polkinhorn v. Wright (1845) 8 QB 197..1

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 STATEMENT OF FACTS

I. Sunil Goswami is an electrical engineer aged 42. His wife is a homemaker and his

children are both in school, aged 13 and 10 respectively. Sunil works for the French

Company. He earns 2,34,000 per month. His house is in Mansarovar, Jaipur.

II. On 20th of January 2017, Sunils friend Arpit Malhotra called him to ask whether he

was interested in taking a 3 month old German Shepherd puppy, Jim. Sunil agreed

and reached Arpits house in Malviya Nagar at 5:00pm. At 6:30pm, Sunil took Arpits

leave and got in his car with Jim. He got out to check for a flat. Jim jumped out ran

inside a building with huge boundary walls. Sunil gave chase.

III. Cheryl got out at 6:15pm, locking both the exit gates of her art gallery. Just when she

got into her car she realized she had forgotten a bag and went in to get it. In hurry she

left both the gates open. She did not bother turning on the lights as she knew exactly

where the bag was.

IV. Suddenly she heard the sound of something running inside. Cheryl jumped around

with fear. She moved close to the gate. She picked up the poker and brought it down

hard on the head of the shadowy figure which had just entered the gallery. The figure

slumped to the ground.

V. Sunil suffers severe brain injury making him unable to work anymore and reducing

him to an invalid requiring assistance for the rest of his life.

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 STATEMENT OF JURISDICTION

The plaintiff has approached this learned district court of Jaipur invoking its jurisdiction to admit

and adjudicate the present matter under Section 6,9,15,16 and 19 read with Order VII, Rule 1and

2 of the Code of Civil Procedure, 1908 and decide accordingly.

All of this is submitted most respectfully.

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 ISSUES OF CONSIDERATION

I. WHETHER SUNIL GOSWAMI IS ENTITLED TO DAMAGES?

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 SUMMARY OF ARGUMENTS

I. WHETHER SUNIL GOSWAMI IS ENTITLED TO DAMAGES?

Mr. Sunil Goswami is entitled to damages as he did not possess any threat to Ms. Cheryl Thadani

and her property and acted out of mere necessity to bring back his dog. Ms. Thandani on the

other hand acted unreasonably and used disproportionate force. Hence Mr. Sunil Goswami is

entitled to damaged.

ARGUMENTS ADVANCED

I. WHETHER SUNIL GOSWAMI IS ENTITLED TO DAMAGES?

Mr. Goswami entered into the property of Ms. Thadani out of necessity to bring back his dog,

Jim. Doctrine of necessity justifies trespass onto anothers property in order to prevent serious

harm to chattel that have wandered there. It was held in this case that the court found that the

defendants entry to retrieve his chattel was lawful1.

A care must be taken to ensure that unreasonable force is not exerted against trespassers 2. Ms.

Thadani owed a duty of care to Mr. Goswami.

A trespasser, even a thief, is entitled to protection from unnecessary violence and to an award of

damages for personal injuries inflicted3. The force used should be reasonable in the

1 Arlowski v. Foglio, (1926) 105 Conn. 342

2 Hackshaw v Shaw (1984) HCA 84

3 Revill v Newbery [1996] 2 WLR 239

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circumstance. In the present circumstance there was no actual threat to the defendant and she

acted disproportionately. The question of reasonability should be kept in mind to ascertain

whether or not the defendant acted in a reasonable manner. If a man enters into the house or land

of another with force and violence, the owner is justified in turning him out without a previous

request to depart and may use such force as is necessary, but if he enters quietly he must be first

requested to retire before hands can be laid upon him to turn him out 4. The law resorts to

reasonable degree of force for the protection of himself or any other person against an unlawful

use of force.

PRAYER

Wherefore, in the light of facts stated, arguments advancedand authorities cite, it is most humbly

prayed before this Learned District Court of Jaipur, that it may be pleased to:

1. Order defendant to clear the hospital dues amounting to Rs 2.7 Lakh rupees, and

additionally compensate the plaintiff by paying 10 Lakh Rupees.

And pass any order in favour of the Plaintiff which this court may deem fit in the ends of justice,

equity and good conscience.

All of which is most humbly and respectfully submitted.

4 Polkinhorn v. Wright (1845) 8 QB 197

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Date: February 8, 2017 Counsel for the Plaintiff

Place: Jaipur S/d-

Counsel No. 1479P