Janardhan v Khan [2011] FJHC 299; HBM1.2010L (25 May 2011)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

Civil Action No: HBM 1 of 2010L

BETWEEN:

JANARDHAN
Applicant

AND:

MOHAMMED NASIR KHAN
1st Respondent

AND:

KHAN BUSES LIMITED
2nd Respondent

INTERLOCUTORY JUDGMENT

Judgment of: Inoke J.

Counsel Appearing: Mr S Maharaj for the Applicant.
Ms N Khan for the 1st and 2nd Second Respondents.

Solicitors: Suresh Maharaj & Associates for the Applicant.
Natasha Khan for the 1st and 2nd Respondents.

Dates of Hearing: 1 June 2010
Date of Judgment: 25 May 2011

A INTRODUCTION

[1] This was an application for committal. Leave to issue committal proceedings was granted on 9 April 2010 ex-parte as required by O 52 r 2 of the High Court Rules 1988. When the matter came for hearing on 30 April 2010, counsel for the Respondents submitted that the proceedings could not continue because leave had lapsed. I then adjourned to 1 June 2010 to hear both counsel on the preliminary objection and reserved my judgment. Unfortunately, no one brought to my attention that the judgment remained outstanding and I only became aware of it when going through my file list recently. I apologise for the late delivery of this judgment.

B THE POINT FOR DECISION

[2] The ex-parte application for leave to issue committal proceedings was filed on 6 April 2010. On 9 April 2010 I granted leave. The Order was not sealed until 16 April 2010. The Applicant filed his inter-partes Motion for committal on 15 April 2010 for hearing on 30 April 2010. The latter date was the return date inserted by the Deputy Registrar in the Motion. I note that the first return date was 23 April 2010 but that was crossed out and replaced by 30 April 2010.

[3] Order 52 r 3 of the High Court Rules 1988 so far as relevant provides as follows:

• (1) When leave has been granted under rule 2 to apply for an order of committal, the application for the order must be made by motion and, unless the Court granting leave has otherwise directed, there must be at least 8 clear days between the service of the notice of motion and the day named therein for the hearing.
  
• (2) Unless within 14 days after such leave was granted the motion is entered for hearing the leave shall lapse.
  

[4] Counsel for the Respondents argued that because the application for committal was not entered for hearing within the 14 days set by O 52 r 3(2), leave had lapsed so the committal proceedings could not proceed. She submitted that when the motion was filed, the application was "not entered for hearing but just filed". It is "only entered for hearing on the date it is returnable".

C DECISION ON THE POINT

[5] The preliminary objection rests on the meaning of the words "entered for hearing". The proper place to start is Order 52 r 3(2). It deals with the time within which the motion must be filed. The motion cannot be entered for hearing unless and until it is filed and when it is filed "the motion is entered for hearing". The applicant is given 14 days after service of the motion to file the motion otherwise leave will lapse. That is the only way to interpret the provision.

[6] Order 52 r 3(1) refers to the "day named (in the motion) for hearing". That must be the date entered as the return date in the motion when it is filed. The provision effectively gives the respondent, subject to Court direction to the contrary, at least 8 clear days after being served with the motion before he is required to appear "on the day named therein for hearing", that is to say, the return date on the motion. The Deputy Registrar was quite correct in changing the return date from 23 to 30 April 2010 because otherwise the Respondents would not have had 8 clear days even if the motion was served on the same day it was filed.

[7] To require the Applicant to file his motion after he gets leave and, as in this case, no abridgment of the 8 days had been directed by the Court, move the Court to have his motion entered for hearing within 6 days after the first return date of the motion, would make it quite impracticable as the Court may not be able to accommodate it.

[8] The point is decided in favour of the Applicant.

[9] I will hear the parties as to whether they want to proceed with the committal and when to set the date for hearing it. I reserve costs.

D ORDERS

[10] The orders are as follows:

1. Preliminary objection to the Applicant's Motion for order of committal against the Respondents filed on 15 April 2010 is dismissed.
   
2. Hearing of the Applicant's Motion to proceed on a date convenient to counsel and the Court.
   
3. Costs of the hearing of the preliminary objection are reserved
   

............................................................
Sosefo Inoke
Judge