Chandra v Kumar [2005] FJHC 382; HBC0182J.2003S (7 December 2005)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO. HBC0182J OF 2003S

BETWEEN:

RATESH PRANIL CHANDRA
(f/n Ram Autar) formerly of Nadawa, Nasinu, but
now staying in Labasa. Clerical Officer.
PLAINTIFF

AND:

VIRENDRA KUMAR
(f/n Jawahir Lal) of
Lot 6 Borote Street, Nadawa, Nasinu, Tailor.
DEFENDANT

Counsel for the Plaintiff/Respondent: N/A
Counsel for the Defendant/Applicant: V. Maharaj: Messrs Maharaj Chandra & Associates.

Date of Judgment: 7 December, 2005
Time of Judgment: 9.30 a.m.

JUDGMENT

Judgment in default of filing of defence was entered by the Plaintiff on 8 July 2003, and later amended to include order for vacant possession of the property described as Housing Authority Sub-Lease No. 440996, with damages. On 26 November, 2003 the Defendant applied for the judgment to be set aside and that he be allowed to defend the action. He also asked for stay The Summons was set down for mention before the Court on 8 December, 2003. However on 3 December, Counsel for the Defendant made an urgent application and was heard together with Counsel for the Plaintiff before me in Chambers. The application was for Stay of execution as the Plaintiff was in the process of evicting the Defendant on the same day. The Court ordered the stay until further orders. The Plaintiff was given 24 hours to file his affidavit in reply and for the Defendant to respond with the arguments fixed for 8 December 2003.

Notwithstanding the Order of Stay, the Plaintiff succeeded on 3 December, 2003 in evicting the Defendant. The Defendant duly obtained an Order granting Writ of Restitution whereby the Defendant was put back in possession of the property.

It appears from the evidence before the Court that the Plaintiff’s efforts to evict the Defendant from the property goes back to Magistrates’ Court Actions Nos. 1419/2000, and 88/2002, and High Court Action HBC0162.2001.

According to the evidence produced by the Defendant, Magistrates Court Action 1419/2000 was discontinued as the matter dealt with dispute to ownership of property and the Defendant’s counterclaim exceeded the Court’s jurisdiction. In respect of High Court CA 162/2001, the Court ruled that it was inappropriate for the Plaintiff to seek vacant possession through S.169 proceedings. Magistrates Court Action 88/2002 is again premised on the same grounds as 1419/2000.

In his affidavit in support of the application to set aside, the Defendant claimed that he had never been served with a Writ by the Plaintiff and consequently had not entered any appearance. The sealed order of the Court’s default judgment of 3 September, 2003 and served on 24 November, 2003, was the first time that the Defendant became aware of the action and the judgment.

The Defendant also argued that the default judgment is irregular, as it has been made by the Deputy Registrar (Legal), who does not have the jurisdiction to enter judgment for vacant possession of land. Furthermore, the Plaintiff’s claim was for unliquidated damages which, according to the Defendant upon the entry of default judgment, the Plaintiff should have followed up with inter-parte summons to prove both claims for vacant possession and damages.

In any case the Defendant submitted that he had prima facie defence and which the Court should allow the action to proceed to a hearing and enable him to defend.

The principle of setting aside is as stated by Lord Atkin in Evans v. Bartlam (1937) AC 483, at p. 480.

“The principle obviously is that unless and until the Court has pronounced a judgment upon the merits or by consent, it is to have the power to revoke the expression of its coercive power where there has only been obtained by failure to follow any of the rules of procedure.”

Furthermore the defence on the merits which the Defendant is required to show need only disclose an arguable or triable issue (see: Drayton Giftware Ltd. v. Varyland Ltd (1982) 132 New L.J. 558), which ought to go for hearing.

On the issue of service, Peter Howard and Associates, solicitors, who had previously acted for the Defendant in the Magistrates’ Court cases as well as the High Court CA 162/2001, had on 4 June 2003, filed acknowledgement of service for the Writ on behalf of the Defendant. The presumption is that, in the absence of anything to the contrary, the service of the Writ had been properly effected on his agents and/or solicitors. That the Defendant may not have been informed by his solicitors of the action, does not mean that he had not been served. It is a matter of fact that the Writ had been served on him albeit through his agents and/or solicitors.

There are nevertheless the issues of irregularity of the judgment and the merit of the defence advanced by the Defendant. The irregularity claimed by the Defendant stems from the fact that the Order varying or amending the default judgment was made not by this Court, from which the original judgment was issued, but by the Deputy Registrar upon ex-parte appliction by the Plaintiff. I am however satisfied, that the amendment to the judgment sought fell squarely under Order 26 r. 10 of the High Court Rules, which permits such amendments to be made due to clerical mistakes or errors from any accident slip or omissions. The correction however requires a motion or summons before this Court.

Finally, it is plainly obvious from the evidence before this Court, that the Defendant has raised triable or arguable issues which satisfies the Court that he has prima facie defence. The history of litigation between the parties alone provide adequate ground for the Court finding that it is necessary and in the interest of justice to have the matter fully heard, notwithstanding the failure to fully comply with the rules of procedure.

There will be an Order to set aside the default judgment of 8 July, 2003. The Defendant to file his defence within 21 days.

Costs of $200 is awarded to the Plaintiff.

F. Jitoko
JUDGE

At Suva
7 December 2005