Kumar v Patel [2005] FJHC 588; HBC0235.1999 (3 August 2005)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

ACTION NO. HBC0235 OF 1999

BETWEEN:

KRISHNA DALIP KUMAR as
Executor and Trustee of
PRATAP SINGH son of
Sukha Singh as per order of
this Court dated 25/3/00
PLAINTIFF

AND:

ATUL KUMAR AMBALAL PATEL
1ST DEFENDANT

FIJI SUGAR CORPORATION
2ND DEFENDANT

Mr Gordon for the Plaintiff
Ms V S Patel for the 1^st Defendant
Mr K. Kumar [o/i] from Munro Lees for 2^nd Defendant

Date of Hearing: 3 June 2005
Dates of Submissions: 24 June, 15 July and 22 July 2005
Date of Judgment: 03 August 2005

JUDGMENT OF FINNIGAN J

This is an application by the 1^st Defendant for an order striking out Plaintiff’s statement of claim. It was filed in August 1999.

In the meantime the Plaintiff has died and the executor and trustee of his estate was substituted as Plaintiff by order on 27 March 2000. No party has filed any documents other than that order the affidavit of service of that order and the submissions filed on behalf of the 1^st Defendant in support of this application. The correct Plaintiff in the action now pursuant to the order made in March 2000 is as above.

On 3 June 2005 the Plaintiff sought a hearing and two dates were allocated, 4 July 2006 and 2 October 2006. In the meantime this interlocutory motion was to be disposed of and I programmed submissions. Of the Defendants only the first filed submissions and the Plaintiff has not replied. I had previously directed the Plaintiff to file and serve an affidavit by 4.00pm on 19 May 2005 and that did not occur either.

The Plaintiff may well have conceded the 1^st Defendant’s point. I can proceed only on the basis of the 1^st Defendant’s submissions.

I accept all the submissions filed on behalf of the 1^st Defendant. I accept that the law requires me not to strike out actions except in plain and obvious cases, wherein a Plaintiff clearly has no chance of success. I accept there is no jurisdiction pursuant to S. 105 (8) (e) of the Property Law Act Cap 130. I accept also that on the affidavit evidence there is no viable cause of action against the 1^st Defendant.

The case against the 2^nd Defendant follows. The action is struck out. I make no order for costs.

D.D. Finnigan
JUDGE

At Lautoka
03 August 2005