Kumar v Wati [2005] FJHC 307; HBC0403.1997 (14 December 2005)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

ACTION NO. HBC0403 OF 1997

BETWEEN:

ASHOK KUMAR
of Tuvu, Lautoka as Executor and Trustee of
the Estate of Ram Bali and in person and
RAM KUMARI of Tuvu, Lautoka, Domestic Duties
as the beneficiary of the Estate of Ram Bali and in person.
PLAINTIFFS

AND:

VIDYA WATI
of Tomuka, Lautoka, Businesswoman as
the Administratrix of the Estate of Ram Jas.
DEFENDANT

Plaintiffs in Person
Messrs Mishra Prakash & Associates for the Defendant

Date of Hearing: 25 November 2005
Date of Minute: 14 December 2005

MINUTE OF FINNIGAN J

This file came before me in the General Callover on 25 November 2005 for allocation of a hearing date. There was no appearance for either party. I put the file aside for further consideration.

On reviewing the file I note that Counsel for the Defendant probably were not advised in June 2005 that the matter would be called on 25 November 2005. The Plaintiffs apparently were not advised.

The action which is between the administrators of two related estates was commenced in 1997 and was pursued with vigour until July 1999 when it was ready for trial and by order of the Court was entered for trial. Thereafter it remained in the lists and was called from time to time but no hearing took place. At one time the parties were trying to settle the matter. On 16 July 2002 Byrne J directed the parties to attend a conference in Chambers on 5 February the following year to discuss settlement and discussions continued until 30 June 2003 when the Judge noted that no settlement is likely. Thereafter the Court was unable to help with hearing dates.

Eventually, on 6 April 2005 the Plaintiffs’ solicitors filed an application to withdraw, with an affidavit in support. This was served and the Plaintiffs appeared at the hearing of the application before Connors J on 20 April 2005. The application was explained to them and an order was made as sought.

This apparently left the Court without an address for the Plaintiff. Nonetheless it is upon the Plaintiffs that the onus rests because this is their action before the Court. Nothing has been heard from them or from solicitors on their behalf since their appearance before the Court on 20 April 2005.

Conclusion:

On that basis this case appears no different from a large number of other cases commenced in the 1990s that were struck out in the General Callovers during April 2005 and on 5 May 2005.

My decision as that it will be struck out for want of prosecution. I make that order accordingly.

As in those other cases, an application for re-instatement accompanied by affidavit evidence showing good cause will be considered on its merits if one is made.

A copy of this minute will be held for the Plaintiffs on the file and a copy delivered to the solicitors for the Defendant.

D.D. Finnigan
JUDGE

At Lautoka
14 December 2005