PANDIT RAVISHANKAR SHUKLA UNIVERSITY

BEFORE

THE HON’BLE SUPREME COURT OF ZINDIA

Civil Appellate Jurisdiction

CIVIL APPEAL NO. __ OF 2021.

IN THE MATTER OF

MR. AAUNGA --- APPELLANT

Versus

MR. JAUNGA --- RESPONDENT

WRITTEN SUBMISSION ON BEHALF OF RESPONDENT

Name – SHUBHENDU PRAKASH RAI

Class – Part V (1st Semester)

Roll no. – 0001653679

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 TABLE OF CONTENTS

1. INDEX OF AUTHORITIES
i) Table of Cases
ii) Books and Articles
iii) Statues and Internet links
iv) List of Abbreviation

2. Statement of Jurisdiction

3. Statement of Facts

4. Statement of Issues

5. Summary of Arguments

6. Arguments Advanced

7. Prayer

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TABLE OF CASES

➢ Rylands v. Fletcher, (1868) L.R 3 H.L. 330.

➢ State of AP v the P Anjaneyulu

➢ Crowhurst v. Amersham Burial Board, (1878) 4 Ex. D. 5;

➢ Kapildeo v. The King

➢ Miller v. Addie & Sons Collieries, (1934) S.C. 150.

➢ Hoare & Ca v. Mc Alpine, (1893) 1 Ch 167.

➢ Fletcher v. Rylands, (1886) L.R. 1 Ex. 265

➢ Read v. Lyons & co

➢ Lokenath Samal vs Guru Prasad Parida And Ors

➢ Cambridge water co. Ltd. V. Eastern Countries Leather Plc

➢ T.C. Balakrishnan v. T.R Subramaniam, A.I.R 1968 Kerala 151;

➢ West v. Bristol Tramways co., (1908) 2 K.B. 14

➢ Firth v. Bowling I ronca, (1878) C.P.D 254.

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 Books and Articles

➢ Ratanlal & Dhirajlal, The Law of Torts, 26th Edition, Lexis Nexis, A division of Reed

Elsevier India pvt Ltd.

➢ Dr. R.K. Bangia, Law of Torts, 23rd Edition, 2010, Allahabad law Agency, Mathura

Road, Faridabad (Haryana).

➢ P.M. Bakshi, The Constitution of India, 12th Edition, Universal Law Publishing co.

pvt. Ltd. 2013, New Delhi.

Statues and Internet Links

Statues:
➢ The Constitution of India

➢ Pesticides Act 1968

➢ Law of Torts

Internet Links:
➢ https://lawtimesjournal.com

➢ www.wikipedia.org

➢ www.indiankanoon.org

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 LIST OF ABBREVIATIONS

ABBREVIATIONS FULL FORMS

& And

AIR All India Reporter

All. ER All England Law Report

Anr Another

Art Article

Ch Chapter

CO. Company

D.S. Defendant

ER England Reporter

Etc Et Cetera

EWHC England and Wales High Court

H.L House of Lords

Hon’ble Honorable
INC Incorporation

K.B King Bench

L.R Law Report

PVT. Private
Q.B Queen Bench
SC Supreme Court
SCC Supreme Court Cases
UKHL United Kingdom House of Lords

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 STATEMENT OF JURISDICTION

The Hon’ble Supreme Court enjoys the right to preside over this matter by virtue of Article 131 in Chapter IV
of the Constitution of India, 1950.

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, and 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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 STATEMENT OF FACTS

FACTUAL BACKGROUND

1. Mr Jaunga is an Assistant Professor of Botany in Chavishankar University in Chaipur. He resides in the

posh locality of Bhayankar Nagar. His neighbour is Mr. Aaunga, a Manager, there houses are adjacent to each
other and their garden is separated by a wooden fence. Mr. Jaunga has a hobby of raising different type of
flowering plants in his garden; on the other hand Mr Aaunga was fond of growing vegetables which lay
alongside the fence.

2. In the rainy season lots of weeds started growing in and around the flower bed, to get rid of them Mr Jaunga
purchased a powerful weed killer called ‘Dhinchak Pooja’. Since it was the poisonous substance there was the
express warning on the canister which stated that ‘Dhinchak Pooja’ was poisonous to humans and clearly
stated that “wash your hands thoroughly after use”.

3. Mr Jaunga sprayed ‘Dhinchak Pooja’ liberally on the flower beds. However, later that day, rain washed some
of the weed killer under the fence into Mr Aaunga vegetable patch which currently consisted of patch Lettuce.
The crop was eventually consumed by the Mr Aaunga’s family. The following day, Mr Aaunga’s five-year-old
son, Khaunga , started complaining of stomach-ache and was later admitted in the hospital due to his
deteriorating health condition. The medical evidence traced the cause of illness due to the weed killer
(Dhinchak Pooja).

4. An action was brought on behalf of Khaunga by Mr Aaunga against Mr.Jaunga . Lower court rejected the
clain stating that use od weed killer is a natural use of land. Further appeal to high court was also dismissed.
However, Mr Aaunga was granted leave to appeal in the Supreme Court.

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 ISSUES FOR CONSIDERATION

Issue that is presented via this Special Leave Petition before the Hon’ble Supreme Court of
India for discussion and adjudication is as follows:

ISSUES

1. Whether the Special Leave Petition is maintainable?

2. Whether use of weed killer was Non Natural use of Mr. Jaunga’s Land?

3. Whether all the elements of strict liability were satisfied or not?

4. Whether Doctrine of Reasonable Foresight is applicable?

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 ARGUMENTS ADVANCED

1. Whether the Special Leave Petition is maintainable?

1.1 It is humbly submitted before the Hon’ble Court that the appeal filed by the petitioner is
not maintainable as Special Leave under the article 136 of THE CONSTITUTION OF INDIA
cannot be granted when substantial justice has been done and no exceptional or special
circumstances exist for the case to be maintainable. Also, there has been no failure of justice
and Special Leave Petition cannot be granted because the lower court rejected the claim by
stating that use of weed killer is a natural use of land. Further appeal in high court was also
dismissed.

1.2 In normal circumstances, the SC does not interfere with an order of acquittal by the High
Court as has been exemplified in the case of State of AP vs. the P Anjaneyulu1 .The Privy
Council have tried to lay down from time to time certain principles for granting special leave to
criminal cases, which were reviewed by the Federal Court in Kapildeo vs. The King2. It is
sufficient for our purpose to say that though we are not bound to follow them too rigidly since
the reasons, constitutional and administrative which sometimes weighed with the Privy
Council, need not weigh with us, yet some of those principles are useful as furnishing in many
cases a sound basis for invoking the discretion of this Court in granting special leave. Generally
speaking, this Court will not grant special leave, unless it is shown that exceptional and special
circumstances exist, that substantial and grave injustice has been done and that the case in
question presents features of sufficient gravity to warrant a review of the decision appealed
against."

1.3 In Dhakeswari Cotton Mills Ltd. vs. Commissioner of income Tax3, It is contended by the
Respondent that the appeal doesn’t involve any substantial question of law rather it involves
pure question of fact and hence, is not maintainable.

1
AIR 1982, SC1184 https://indiankanoon.org/doc/1786065/
2
https://indiankanoon.org/doc/1273911/
3 1955
AIR 65, 1955 SCR (1) 941 https://indiankanoon.org/doc/1837602/

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 Questions of fact cannot be permitted to be raised unless there is material evidence which has
been ignored by the HC or the finding reached by the court is perverse. In Amarchand
Sobhachand vs. CIT4. Further, if the conclusion is based on some evidence on which
subsequently a conclusion could be arrived at, no question of law is raised.

2. Whether use of weed killer was Non Natural use of Mr. Jaunga’s Land?

2.1 It is humbly submitted before the hon’ble Supreme Court that the weed killer used by Mr.
Jaunga was natural use of land on the ground of which the Lower court rejected the claim and
High court dismissed the appeal. Read vs. J. Lyons & Co.5 In this case, the defendant took
control of the management of an ordinance factory where highly explosive shells for the
government were made. An explosion inside the factory caused damage to the plaintiff and
several others. When plaintiff asked for damages under the principle of strict liability, since
there was no negligence on the part of the authorities, THE HOUSE OF LORDS upheld the
decision and said that although there was an unnatural use of land, no escape of dangerous
thing occurred. Thus, no compensation was granted on part of the defendant.

2.2 Weed killer is used for the purpose of clearing the weeds which is necessary for the good
production and growth of plants. Sochacki vs. Sas6. The defendant was a lodger in the
claimant’s house. He lit an open fire in his room and then went out. Unfortunately a spark
jumped from the fire and set the room alight. The fire spread to the rest of the house and the
claimant brought an action against the defendant based on liability arising under Rylands v
Fletcher7. It was held: The defendant was not liable. Whilst the fire was likely to do mischief if
it escaped, the use of an open fire in the claimant’s fireplace was not considered a non-natural
use of land.

4.
AIR 1971 SC 720https://indiankanoon.org/doc/1617870/
5.
Read vs. Lyons [1947] AC 156 House of Lords
6.
[1947] All ER 344
7. https://www.bailii.org/uk/cases/UKHL/1868/1.html

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 Similarly growing of flower beds and plants in garden and to protect them spraying weed killer
is a natural use of land.

2.3 In Stull’s Chemicals vs. Davis8, “weed killer is not shown to be an inherently dangerous
compound in which event the manufacturer cannot be held to strict liability damages resulting
from its negligent.

2.4 As per the section 18 of The Insecticide Rule, 19719, it is the obligation toward seller to
print caution so it doesn’t conclude that it is non natural use.
For the use to be non-natural, it "must be some special use bringing with it increased danger
to others, and must not merely by the ordinary use of land or such a use as is proper for the
general benefit of community as per.10

3. Whether all the elements of strict liability were satisfied or not?

3.1 For the application of the rule of strict liability the following essentials were satisfied-
(i) Some dangerous thing must have been brought by a person on his land.
(ii) The thing thus brought or kept by a person on his land must escape.
(iii) It must be a non natural use of land.

3.2 For the rule in Rylands vs. Fletcher to apply, escape is also essential that the thing causing
the damage must escape to the area outside the occupation and control of defendant. Nichols
vs. Marsland11; the defendant diverted a natural stream on his land to create ornamental
lakes. Exceptionally heavy rain caused the artificial lakes and waterways to be flooded and
damage adjoining land. The defendant was held not liable under Rylands vs. Fletcher as the
cause of the flood was an act of God. Similarly in our case Mr.Jaunga sprayed ‘Dhinchak Pooja’
liberally on this flower beds. However, later that day, rain washed some of the weed killer
under the fence onto Aaunga’ vegetable patch which currently consisted of a patch of lettuce.

8263 S.W.2d 806 (Tex. Ct. App. – Dallas 1953)

9
The Insecticide Rule 1971
10
Ibid, at 280
11 [(1876) 2 ExD 1]

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 The rainfall was an act of god and not under the control of Mr. Jaunga.

4. Whether Doctrine of Reasonable Foresight is applicable?

4.1 The principle of Remoteness of Damages is relevant to such cases. An event constituting a
wrong can constitute of single consequence or may constitute of consequences i.e. series of
acts/wrongs. The damage may be proximate or might be remote, or too remote. Cambridge
water co. Ltd. V. Eastern Countries Leather Plc12. The plaintiff was a company licensed to water
supply while the defendant was a company engaged in manufacturing of fine leather. The
defendant company used a volatile solvent known as perchloroethylene (PCE) which seeped
into the ground and slowly in 9 months, got mixed with plaintiff’s borehole water 1.3 miles
away. After detection of the chemical, the plaintiff’s borehole was ceased to be wholesome
and could not be lawfully supplied. When plaintiff claimed damages, THE HOUSE OF LORDS in
negativing the claim said that this kind of percolation could not be foreseen by the defendant
and thus, the defendant could not be held liable for the damages claimed.

4.2 In Lokenath Samal vs Guru Prasad Parida and Ors.13 - The test of foresee ability was
considered and adopted. The plots of the plaintiff and defendant were adjacent. In the midst
of monsoon, the defendant dug a tank and put Earth on sides. Due to heavy rains, the earth
spread over the plaintiff’s plot and damaged paddy crop. On an action by the plaintiff for
damages the court held that the defendant having not to force in the consequences of this act,
which was coma in the course of the normal use of land, he was not liable. There are also
other causes of this type which supports the doctrine of a test of reasonable foresee ability.

Similarly, in our case due to rainfall washing out weed killer and further consumed by Mr.
Aaunga’s son was not foreseeable by the Respondent.

12 [1994] 1 All ER 53
13 AIR 1963 Ori 21https://indiankanoon.org/doc/1230280/

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PRAYER

WHEREFORE, in light of the issues raised, arguments advanced and authorities cited it is most
humbly and respectfully requested that this Hon’ble Supreme Court to adjudge and declare that:

To dismiss the Special Leave Petition and Reiterate the previous judgments of Lower court and High
court.

All of which is respectfully affirmed and submitted.

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

Sign/Date

(Counsel for the Respondent)

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