Mohammed v Sharma [2011] FJHC 93; HBC112.2007 (31 January 2011)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

CIVIL JURISDICTION NO. HBC 112 OF 2007

BETWEEN:

TASWIK MOHAMMED father’s name Mohammed Shafiq of Raviravi Ba, Technician.
1ST PLAINTIFF

AND:

TIRULOK MUNI NADAN NAIDU father’s name Ganga Dharan Naidu of Nadovi, Nadi, Technician.
2ND PLAINTIFF

AND:

SUBHAS CHANDRA SHARMA father’s name Ram Oudh Sharma trading as SHARMA MUSIC CENTRE of Nadi Town.
1ST DEFENDANT

AND:

VIJENDRA MANI father’s name Subramani, Technician.
2ND DEFENDANT

AND:

SUBHAS CHANDRA SHARMA father’s name Ram Oudh Sharma trading as SHARMA MUSIC CENTRE of Nadi Town.
3RD DEFENDANT

Before: Master Anare Tuilevuka

Counsels: Messrs Chaudhary & Associates for the Plaintiff
: Messrs Suresh Maharaj & Associates for the 1st Defendant & Third Party
: Messrs Mishra Prakash & Associates for the 2nd Defendant

Date of Ruling: 31st January 2011

RULING

INTRODUCTION

[1]. Before me now is the 1st defendant’s (also the third Party’s) summons dated 05th February 2010 seeking the following orders:

• (i) leave to amend his statement of defence. The summons also seeks an order that the Third Party Notice issued on 07th April 2009 against them by the 2nd defendant and all pleadings filed pursuant to that Notice be struck out and dismissed.
  
• (ii) That the Third Party Notice issue don 07/04/2009 against the 1st Defendant by the 2nd Defendant and all subsequent Third party pleading be struck out and dismissed.
  
• (iii) alternatively, an order that leave be granted to appeal the Master’s order of 26th March 2008 and/or that time be extended for the filing of that application.
  

[2]. The applications are made pursuant to Order 16 Rule 6; Order 20 Rule 5 and on the inherent jurisdiction of the Court and are supported by an affidavit sworn by Thomas Naua on 7th December 2009.

[3]. Mr. Maharaj more or less recoiled from pursuing ground (ii) above at the hearing when it was pointed out to him that Master Udit was entitled to deal with an application for leave to issue third party proceedings ex-parte under Oder 16 Rule 2. I shall simply dismiss the application under ground (ii). In any event, Master Udit’s exercise of discretion under Order 16 Rule 2 was an interlocutory decision. Courts have repeatedly emphasised that appeals against interlocutory orders and decisions will only rarely succeed (see Mr. Justice Inoke’s application of the principles with reference to the appeal of interlocutory decisions of the Master in Narayan v Public Employees Union [2010] FJHC 108; HBC161.2009L (8 April 2010).

[4]. As regards ground (i), the amendment is being sought by Suresh Maharaj & Associates. That firm acts for Sun Insurance Company Limited (“SICL”). SICL is the insurer of the 1st defendant under a Workmen’s Compensation cover. Apparently, SICL is of the view that the original defence filed for the 1st defendant by Babu Singh & Associates was incomplete in that certain issues relating to the Workers Compensation Act and the Employment Act (Cap 94) were not clearly pleaded.

[5]. Order 20 Rule 5 states as follows:

Amendment of writ or pleading with leave (O. 20, r.5)

5. - (1) Subject to Order 15, rules 4, 8 and 9 and the following provisions of this rule, the Court may at any stage of the proceedings allow the plaintiff to amend his writ or any party to amend his pleading on such terms as to costs or otherwise as may be just and in such manner (if any) as it may direct.

(2) When an application to the Court for leave to make the amendment mentioned in paragraph (3), (4) or (5) is made after any relevant period of limitation current at the date of issue of the writ has expired, the Court may nevertheless grant such leave in the circumstances mentioned in that paragraph if it thinks it just to do so.

[6]. Generally, courts will allow a party to amend his or her pleading if the amendment will help in determining the real question in controversy between the parties to any proceedings (RL Baker Ltd v. Medway Building & Supplies Ltd [1958 1 WLR 1216, at 1231, per Jenkins LJ.
[7]. An amendment will also usually be allowed to correct any defence or error in any proceedings (RL Baker Ltd v. Medway Building at 1231). In Tildesley v. Harper [1878] UKLawRpCh 284; (1876) 10 ChD 393, at 396-97, Bramwell, LJ said and it is apt:

My practice has always been to give leave to amend unless I have been satisfied that the party applying was acting male fide, or that, by his blunder, he had done some injury to the opponent which could not be compensated for by costs or otherwise’. ‘However negligent or careless may have been the first omission, and however late the proposed amendment, the amendment should be allowed if it can be made without injustice to the other side. There is no injustice if the other side can be compensated by costs’ (per Brett MR, Claropede v. Commercial Union Association (1882) 82 WR 262, at 263); Weldon v. Neal ( [1887] UKLawRpKQB 161; 1887) 19 QBD 394, at 396; Australian Steam Navigation Co. v. Smith [1889] UKLawRpAC 12; (1889) 14 AppCas 318, at 320 ... An amendment ought to be allowed if thereby ‘the real substantial question can be raised between the parties’ and multiplicity of legal proceedings [be] avoided: Kurtz v. Spence ( 1888) 36 ChD 774; The Alert (1895) 72 LT 124: at 4-5

(see also Fiji Court of Appeal decision in Ahmed v Ibrahim [2002] FJCA 74; ABU 008 1U.2000S (29th November 2000)).

ORDERS

[8]. Leave granted to Suresh Maharaj & Associates to file and serve an amended defence and defence to Third Party proceedings in 14 days.

[9]. 14 days thereafter to plaintiff and 2nd defendant to file and serve reply to the above.

[10]. Costs of $250-00 (two hundred and fifty dollars) each to the plaintiff and the 2nd defendant to be paid in 14 days.

[11]. Case adjourned to 28th February 2011 for mention.

Anare Tuilevuka
Master

At Lautoka
31st January 2011