Raj v Sumintra [1998] FJCA 3; Abu0043d.96 (28 January 1998)

Fiji Islands - Raj v Sumintra - Pacific Law Materials

IN THE FIJI COURT OF APPEAL

CIVIL JURISDICTION

CIVIL APPEAL NO. ABU0043/96
(High Court Civil Action No. HBC0202 of 1990/L)

BETWEEN: VINITA RAJ
daughter of Kishore Lal of Yalalevu, Ba, Fiji
engaged in domestic duties as the sole Executrix and Trustee of
the Estate of SHIU MATI also known as MAYA DEVI
daughter of Paragi of Yalalevu, Ba, Fiji, Deceased
Appellant

AND:

SUMINTRA
daughter of Shiu Shankar of Ba, Fiji, School Teacher
the Executor and Trustee of the Estate of PARAS RAM
Respondent

RULING
(Chamber applicaplication for leave to serve Respondent's Notice out of time)

Notice of Appeal in this case was filed on 30 August 1996.

On 21 October 1997 I set down this appeal for hearing on 4 February 1998. I also ordered the Appellant to file and serve written submission on or before 28 November 1997. The Respondent was ordered to reply thereto by 15 January 1998. These Orders were complied with.

However on 7 January 1998 the Respondent applied to a single judge seeking leave to file and serve Respondent's Notice out of time. When this application came up for hearing before me on 16 January 1998 the Counsel appearing for the Appellant objected to the application and sought an adjournment to file an affidavit in opposition. I ordered the Appellant to file and serve an affidavit in reply on or before 23 January 1998.

In view of the shortness of time available before the hearing date of the appeal it was agreed that the Ruling could be conveyed by fax without further oral hearing.

The affidavit in reply was filed on 22 January 1998 but the Registry overlooked to place the file before me for a Ruling until the afternoon of 28 January 1998.

Nevertheless having read the affidavits for and against this application and bearing in mind the sequence of events I am of the opinion that no injustice will be done if this application is refused. I am also of the view that the Respondent could have made this application much earlier and although I do have the power to give leave to serve Respondent's Notice out of time the aims and objectives of Rule 19 of the Court of Appeal Rules should be kept in mind.

The Respondent itself through the supporting affidavit of Sumintra filed on 7 January 1998 says -

“4. THAT except for the issue of statute of limitation all the matters in the Respondent's Notice have been dealt with in my Submissions filed in reply to the Appellant's Submission and accordingly, nothing new is being maintained in the Respondent's Notice.”

As far as the new issue of limitation is concerned the Respondent is at liberty to raise this matter before the full Court on the ground that it is a legal question going to jurisdiction. No doubt the Respondent will have to abide by any ruling given by the Court itself whether it will be allowed to argue the issue or not.

Application for leave to issue and serve Respondent's Notice out of time is refused. This Ruling is to be faxed to Parties involved and copy each to be supplied to them in due course.

Costs to be in the cause.

Sir Moti Tikaram
President, Fiji Court of Appeal

Suva
28 January 1998

Solicitors for the Appellant Messrs Mishra, Prakash & Associates
Solicitors for the Respondent Messrs Sahu Khan & Sahu Khan

Abu0043d.96