Hansraj and Company Ltd v National Insurance Company [2004] FJHC 381; HBC0181.1990L (1 March 2004)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

CIVIL ACTION NO. HBC0181 OF 1990

BETWEEN:

HANSRAJ AND COMPANY LIMITED
Plaintiff

AND:

NATIONAL INSURANCE COMPANY
1st Defendant

AND:

RAM JAS
2nd Defendant

Counsel for the Plaintiff: Mr. Haroon A. Shah for Mr G.P. Shankar
Counsel for the 1st Defendant: Mr. Anu Patel
No appearance for the 2nd Defendant

Date of Hearing & Judgment: 1 March 2004

EXTEMPORE JUDGMENT

Before the court is a Summons filed on the 30th of October 2003 on behalf of the plaintiff which seeks the following orders: -

1. That the plaintiff’s application be restored;

2. That the Orders made on 3rd October 2003 be vacated;

3. Costs to plaintiff;

4. Alternatively plaintiff have leave to appeal.

This summons is supported by an affidavit of Kalpana Kamini Pillay sworn on the 21^st of October 2003. The plaintiff has filed the further summons which seeks: -

1. For stay of execution and/or all enforcement proceedings under Order dated 16^th day of October 2003;
2. Alternatively leave to appeal to the Court of Appeal;
3. Costs in the cause.
   

The plaintiff says that he only wishes to proceed with the second summons, if it is unsuccessful on the first summons. This second summons is supported by an affidavit of Kalpana Kamini Pillay sworn on 10 November 2003.

The plaintiff has filed written submissions and the 1^st defendant has made extensive oral submissions. The plaintiff submits that the writ of summons filed on its behalf on 10 July 1990 was ready for hearing and since about 1995 and was merely awaiting the assignment of a hearing date.

The 1^st defendant by summons filed on 24 September 2002 sought to dismiss the action for want of prosecution. This summons came before the court on 8 November 2002 when it was adjourned to 28 March 2003 for mention.

The court record shows that the summons then actually came before the court on 30 April 2003 when it was adjourned to 25 July 2003 for mention. For some reasons, not apparent from the court file, the summons in fact came before the court next on 3 October 2003 when counsel for the plaintiff sought leave to withdraw which was granted and the orders sought in the summons were then granted.

The plaintiff then on 6 October 2003, some three days later, filed a summons seeking that the action be restored that the orders of the 3^rd October 2003 be vacated.
On 13 October 2003, the orders of 3 October 2003 were perfected.

The summons filed on 6 October 2003 came before the court on 16 October 2003 when was struck out there being no appearance on behalf of the plaintiff. That order was perfected on 17 October 2003.

On 30 October 2003, the summons now before the court was filed.

Counsel for the 1^st defendant submits that as the orders of 3 October 2003 and 16 October 2003 were perfected. The provisions of Order 32 Rule 5(3) preclude the court from granting the orders sought by the plaintiff.

Order 32 Rule 5(3) states and I quote: -

“Where the court hearing a summons proceeded in the absence of a party, then, provided that any order made on the hearing has not been perfected, the court, if satisfied that it is just to do so, may rehear the summons.”

The plaintiff seeks orders to restore the writ of summons, which was struck out by the order of the court on 3 October 2003 as its ultimate order.

Order 32 Rule 5(4) provides and I quote: -

“Where an application made by summons has been dismissed without a hearing by reason of the failure of the party who took out the summons to attend for hearing, the court, if satisfied that it is just to do so, may allow the summons to be restored to the list.”

Which seem then that the summons filed on 6 October 2003 could be restored to the list if the court is satisfied that it is just to do so in having been struck out in the absence of the party who filed it.

Sub rule 4 of Order 32 does not appear to have been restricted or fettered in the manner that Sub rule 3 is restricted, that is, it is not restricted to situations where the order has not been perfected.

The Supreme Court Practice that paragraph 32/1-6/13 on page 551 of 1991 Edition states and I quote: -

“Paragraph (4) embodies the present practice, under which if a summons or a case is not heard, but is dismissed or merely struck out for non-attendance of the party whose summons it is, the court may, if satisfied that it is just to do so, allow the summons to be restored to the list and to hear or entertain it, even though the order dismissing it has been drawn up.”

Whilst the delay in the hearing of this matter is quite unacceptable, it seems that the delays at this court have significantly contributed to that delay and to that extent the plaintiff should not be prejudiced because of it. It appears therefore to me that on balance the plaintiff should be entitled to litigate its claim. It must do so without any further delay or dilatory conduct and it will be required to pay the plaintiff’s costs due to the failure of it to prosecute not only its substantive claim but its interlocutory applications in recent times.

I am not prepared in the light of what I have said to vacate the costs order made by the court on 16 October 2003 but I am prepared to restore the plaintiff’s summons filed on 6 October 2003 pursuant to the provisions of Order 32 Rule 5(4) and having restored that summons, I proposed then to proceed to make orders restored in the writ of summons filed on 10 July 1990.

The Orders of the Court therefore are:-

1. That the plaintiff’s application (summons filed on 6 October 2003) is restored;
   
2. That the cost order of 16 October 2003 is to stand;
   
3. That the order of the court of 3 October 2003 is otherwise vacated;
   
4. That the plaintiff is to pay the defendants’ costs of this application notwithstanding its success in this application assessed in the sum of One Thousand Dollars ($1,000.00);
   
5. That the defendants’ summons filed on 11 November 2003 is dismissed.
   
6. That other outstanding costs totalling the sum of Two Thousand and Eight Hundred Dollars ($2,8000.00) are to be paid within 14 days and prior to the plaintiff taking any further step in this action.
   
7. That the matter be placed before the Deputy Registrar for the purpose of fixing a date for hearing at 9.00am on 19 March 2004.
   

JOHN CONNORS

JUDGE

AT LAUTOKA

1 March 2004