Devi v Umrao [1995] FJHC 20; Hbc0375j.92s (24 January 1995)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO.0375 OF 1992

Between:

MANJULA DEVI
d/o Krishna Datt
Plaintiff

- and -

KAJAL UMRAO
s/o Shiu Prasad
Defendant

Mr. T. Fa for Plaintiff
Mr. J. Semisi for Defendant

JUDGMENT

By Originating Summons dated 21 August 1992 the Plaintiff is seeking a number of declarations and orders against the defendant who is her divorced husband.

Before proceeding to consider the action before me, it is important that I set out the history of this action which will show the "could not care less" attitude of the defendant and the laxity with which his counsel handled the matter.

The summons was served on the defendant on 6 September 1992 and Acknowledgment of Service was filed 6 October 1992.

The hearing of Summons was fixed for 20 November 1992; the defendant did not appear but an order was made to file an affidavit in Reply within 14 days. On 19 April 1993 Mr. Semisi appeared and informed the Court that he had no further instructions but undertook to take instructions. The matter was then adjourned to 5 May 1993. On 16 June 1993 an order was made to file an Affidavit in Reply when both counsel were present. After that, except for counsel appearing for Mr. Semisi on 18 August 1993, there was no appearance of defendant's counsel nor was affidavit filed as ordered.

On 20 September 1994 the action was for hearing, and Mr. Semisi was not present and Mr. Fa urged the Court to proceed to hearing for the reasons he gave. I agreed with him and commenced the hearing of the action.

The hearing concluded the same day and Mr. Fa was ordered to file written submissions within 14 days but he has failed to do so despite a reminder from the Court Registry on 15 November 1994. So I decided to write this judgment without it.

The reliefs and orders which the Plaintiff is seeking are as set out in the Summons.

Briefly, evidence as adduced by the Plaintiff are as hereunder. On 13 December 1979 the parties were lawfully married; they have a child (a son) born 1 April 1983. This marriage was dissolved by the Ba Magistrate's Court (Divorce Case No.78/89); the custody of the said child was granted to the Plaintiff and an order of $10.00 per week was made for his maintenance. Both of them were and are school teachers.

In 1985 they had purchased a property situate at Howell Road, Suva namely CT.4188 being Lot 36 on DP 1994. They are registered as joint tenants. That is their matrimonial home. The property was purchased for $42,000.00 and mortgaged for $32,000.00.

Both of them contributed towards the purchase of the said property with the Plaintiff paying $6,000.00 and the defendant $4,000.00. The property was mortgaged and for six years she paid $85.85 per fortnight and the defendant paid $88.15 towards mortgage payment.

The Plaintiff has made certain improvements to the house costing over $1000.00.

The parties rented out the property which consisted of two flats, while they themselves lived in quarters provide by their respective employers. They receive $300.00 a month by way of rent.

After their divorce on 20 November 1989 the defendant took control of the matrimonial property and himself lived in the 'servant's quarters'. He collected all the rent. The Plaintiff lived in rental accommodation at $200.00 per month.

The defendant took possession of the car Reg.No.BS356 although it was purchased by the Plaintiff for $4500.00. The car was registered in his name. Apart from other matrimonial assets the defendant had also retained a television which belonged to her.

The defendant has failed to maintain the said child but the Plaintiff is abandoning this claim in this action.

The Plaintiff says that she has not received an account of income from the said property. This was an uncontested hearing and hence the facts are not in dispute.

Since the Plaintiff is a joint owner of the said property with the defendant therefore there is no need for court to make a declaration of ownership. There is insufficient evidence before me to enable me to make an order transferring the Plaintiff's interest to her in the property as, for one thing, proper account should be taken and there has to be evidence of what is the present liability to the mortgagee.

There is no denying the fact that she is entitled to her share of the rent income but I am not satisfied that she should be compensated for the rent she is paying for her accommodation where she is teaching.

To conclude, on the facts of this case I do not propose to grant the reliefs sought in the order in the Summons as there is overlapping in them, but will make orders which I consider ought to be made after consolidating some of the reliefs.

I order as follows:

(a). That the defendant furnish to the Plaintiff an account of all rent received by him from the said property (CT.4188) since the time he took control of the property including all income and expenditure and amount still owing under the mortgage in respect of the said property within 28 days of this judgment and after the taking of accounts the Plaintiff is to be paid her share of the rental income. Should there be any dispute on the accounts as submitted either party shall be at liberty to apply to Court.

(b). That the television set be returned to the Plaintiff and the motor vehicle Regd.No.BS356 be transferred to the Plaintiff within 28 days from the date of this judgment.

(c). That after accounts had been taken and finalised, liberty is reserved to either party to apply to court for distribution and/or sale of the said matrimonial property being CT.4188 in a proper and separate application made in that regard.

(d). That the defendant pay the costs of this action.

D. PATHIK
JUDGE

At Suva
24 JANUARY 1995.

HBC0375J.92S