Lata v Prakash Transport and Supermarket [2006] FJHC 67; HBC380.1993L (25 August 2006)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

CIVIL ACTION NO. 380 OF 1993L

NO. 167 OF 2006

BETWEEN

PREMILA LATA & SURENDRA PRASAD
Plaintiffs

AND

PRAKASH TRANSPORT AND SUPERMARKET
First Defendant

AND

PRANESH PRAKASH
2nd Defendant

AND

DINESH CHAND
3rd Defendant

AND

LEPANI
4th Defendant

AND

CUVU BULLDOZING WORKS
5th Defendant

Appearances: Messrs Mishra Prakash & Associates for the plaintiffs
Messrs Sahu Khan & Sahu Khan for the 1st & 2nd Defendants

Decision: 25 August 2006

Interim Ruling

[1] Before me is a summons filed by the plaintiffs for leave to amend the writ of summons and statement of claim herein. The application is made pursuant to 0.20 r 5 of the High Court Rules. The application is opposed, principally on the basis that any claim against any new party sought to be added will be statute barred under the Limitation Act and the Compensation to Relatives Act.

[2] I have not as yet determined the merits of the application because it is apparent that learned counsel for the plaintiffs has prosecuted the application on the mistaken belief that the 1st and 2nd defendants failed to file an affidavit opposing the application. That is not so. An affidavit was filed by the 2nd defendant on 14 December 2005. I am also concerned that the evidenciary basis upon which learned counsel relies in her submissions is not properly before the Court. There are serious allegations made about changes to the names of the defendant parties after the commencement of this action facilitated by counsel on record for the 1st and 2nd defendants.

[3] Notwithstanding that this action was filed in 1993, in the interests of justice and in the exercise of my inherent jurisdiction, I am granting leave to the plaintiff to file and serve a supplementary affidavit in answer to that filed by the 2nd defendant on 14 December 2005 and containing the evidence upon which learned counsel for the plaintiff relies in this application. The supplementary affidavit is to be filed and served in 14 days. The 1st and 2nd defendants are at liberty to file and serve an affidavit in reply 7 days thereafter.

[4] I will hear further submissions by the parties on a date to be fixed today. Costs in the cause.

Gwen Phillips
JUDGE

At Lautoka
25 August 2006