Krishan v Prasad [2012] FJHC 1263; HBC138.2011 (2 August 2012)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

Civil Action No. HBC 138 of 2011

BETWEEN:

PRANEEL KRISHAN of 50 Extension Street, Suva Junior Accountant being a beneficiary and the intended Administrator of the Estate of Sukhu late of 50 Extension Street, Suva, Boat Builder, Deceased.
1ST PLAINTIFF

AND:

PRANEEL KRISHAN and SULBHA WATI of 50 Extension Street, Suva, Junior Accountant and Homemaker respectively as Administrators of the Estate of Hari Krishan late of 50 Extension Street, Suva, Boat Builder, Deceased.
2ND PLAINTIFF

AND:

KAMTA PRASAD aka KAMPTA PRASAD previously of 50 Extension Street, Suva; Now of Lidcomb, NSW, Australia, Retired as Administrator De Bonis Non of the Estate of Dukhu
1ST DEFENDANT

AND:

REGISTRAR OF TITLES Ground Floor, Civic House, Suva.
2ND DEFENDANT

BEFORE: Master Deepthi Amaratunga

COUNSEL: Ms. Vaurasi Laurel Sa- Rosy M. for the Plaintiffs
Mr. S. Singh for the 1st Defendant

Date of Hearing: 24th February, 2012
Date of Ruling: 02nd August, 2012

RULING

A. INTRODUCTION

1. The Defendant filed the summons for further and better particulars and the Plaintiff states that the further and better particulars sought by the Defendant is not related to the statement of claim.
   

B. FACTS AND ANALYSIS

2. The Plaintiffs filed this action against the Defendants seeking orders that are more fully described in prayer (a) to (k) of the statement of claim. The said claims relate to a property where the Plaintiff is claiming proprietary rights and also seeking for an order for the 2nd Defendant to rectify the alleged wrongful entry regarding the purported cancellation of mortgage no 75434.
   
3. The alleged 'wrongful entry on the certificate to the title 6283 at Lot DP 445' is contained in the paragraph 17 to 22 of the statement of claim and in paragraph 18 states as follows
   

'18.On the 3rd April 1998, the 1st Defendant wrongfully obtained a High Court order discharging mortgage number 75434 registered on Certificate of Title number 6283 as the order was against Maya Wati.' (emphasis added)

4. The Plaintiff has not alleged any fraud or misrepresentation against the Defendants, but state that the discharge of the mortgage 75434 was wrong as the order of the court was against Maya Wati and the mortgage number 75434 was registered on the certificate to title number 6283 in favour of the mortgagee, namely the estate of the late Hari Krishan.
   
5. The contention of the Plaintiff is clear and precise, and that is the order of the High Court was only against Maya Wati, and the discharging the mortgage upon the said order was a wrongful act done by the 2nd Defendant. This can be answered by the Defendants without any further and better particulars as the order of the court would speak for itself and the parties of the said case and the order of the case can be clearly ascertainable. If the said order was wrongfully applied to cancel the mortgage number 75434, no further and better particulars are needed except the perusal of the said court order.
   
6. The Defendants in their statement of Defence replied to the paragraph 18 of the statement of claim, which I quoted above, in the following manner.
   

'4. It admits paragraph 18 in so far as there was an attempt to discharge mortgage 75434 but cannot admit nor deny that the 1st Defendant had wrongfully obtained a High Court Order to discharge mortgage no 75434 as it has no knowledge of this.'

7. The above reply indicate the evasive manner the Defendants have answered the issue of the purported cancellation of the mortgage, which can be easily ascertained from the court records. In the statement of defence the Defendants admit 'an attempt to discharge the mortgage 75434' was done, but falls short of informing who attempted to cancel the mortgage 75434 and what was the basis of the said attempt. Without doing that now the Defendants trying to obtain evidence from the Plaintiff relating to the said mortgage, which is not an issue before the court as the issue before the court is only whether the said mortgage is cancelled and if so whether that was done in pursuant to the court order against Maya Wati.
   
8. The 1st Defendant in support of his application for further and better particulars filed the affidavit of Dorothy leli which annexed a letter dated 19th October 2011, in which particulars are requested as follows –
   
   • (1) What is the amount alleged by your clients as being due under the said mortgage.
     
   • (2) Have your clients made any demand on the said mortgage? If so, what was the date of the said demand? Please provide us copies of demand(s) so made.
     
   • (3) Details of payment (if any) that have been against the said Mortgage including particulars' of;
     
     • (a) The dates of the payment;
       
     • (b) Amounts paid
       
     • (c) The person who made payment;
       
     • (d) if a receipt was issued for the payment;
       
     • (e) If a receipt was issued, we require a copy of each receipt provided.
       
9. Order 18 rule11 (3) of the High Court Rules states that –
   

"The Court may order a party to serve on the other party particulars of any claim, defence or other matters stated in his pleadings, or in any affidavit of his ordered to stand as a pleading, or a statement of the nature of the case on which he relies, and the order may be made on such terms as the court thinks just".

10. The court is granted discretion to order for further and better particulars as it thinks just. The order for further and better particulars should be confined to the matters stated in the pleadings or any affidavit and in this instance it the statement of claim that the Defendants are relying on their application for further and better particulars.
    
11. Supreme Court Rules (1999) p 328 (18/12/2) under the heading 'General' state as follows
    

'The purpose of pleading is not to play a game at the expense of the litigants but to enable the opposing party to know the case against him. There is a tendency to forget this basis purpose and to seek particulars which are not necessary when the truth each party knows the others' case (Trust Securities Holding v Sir Robert McAlpine & Sons Ltd (1994) The Times, December 21 CA).'

12. The issue raised in the statement of claim is the alleged wrongful cancellation of the mortgage number 75434 in pursuant to an order against Maya Wati. This can be ascertained easily by reference to the particular action and the order of the court. Whether the said order against Maya Wati was wrongfully registered in the certificate of the title, as a cancellation of the mortgage, does not need the particulars sought by the Defendants. The action which purportedly cancelled the mortgage 75434, should be known to all the parties and can be easily ascertainable. Instead the Defendants who did not take a stand, to the said allegation, by either accepting or denying the said purported cancellation of mortgage 75434 now seeks to obtain the particulars of the said mortgage by this application. The issue raised in this action in the statement of claim is whether the purported cancellation of the mortgage is done in pursuant to the order of the court against Maya Wati.
    
13. The mortgage 75434 being registered on the title is never an issue as it can be easily ascertainable from the certificate of title and the cancellation of the said mortgage by the 2nd Defendant cannot be an issue as this also can be easily ascertainable from the title. The Defendants in their statement of defence, admit that 'an attempt' was made to cancel the mortgage, but falls short of informing who 'attempted' to cancel it and on what basis it was 'attempted'.
    
14. The Defendants should be able to answer the averment 18 in the statement of claim without evading to answer the issue which is: Whether the alleged cancellation of the mortgage 75434 was done in pursuant to action in the High Court where the orders were against Maya Wati?
    
15. The perusal of the court order or would be sufficient to answer the said issue and the Defendants cannot expand the said issue to a contest of the issues relating to the mortgage 75434 and by doing so request the Plaintiff to provide the materials that Defendants want, in the guise of further and better particulars.
    
16. The letter of the Defendants seeking further particulars do not relate to he issue raised in the statement of claim, which is simple and clear and that is whether the order against Maya Wati could be executed for the cancellation of the mortgage 75434. The particulars of the mortgage is not needed as there is an order of the High Court on that issue and all parties has to abide by that decision and cannot reopen the issues already dealt in that action again.
    

C. CONCLUSION

17. The Plaintiff's main claim in the statement of claim is on equity and in addition to that the Plaintiff seeks to rectify the alleged wrongful entry. If the said entry of purported cancellation was made in pursuant to a court order, does not need any of the materials requested by the Defendants. What the Plaintiff is alleging is the said order of the court was only against Maya Wati and the said court order could not have been utilized for the purported cancellation of the mortgage 75434. This issue does not any way relate to the particulars that were sought by the Defendants as this purely relates to court an order of the court and its application in purported cancellation. The particulars that were requested by the Defendant cannot be considered as particulars of the claim, as the claim relates to rectification of the alleged cancellation. So, what the court has to look is the court order and whether that was an order against Maya Wati and whether that order against Maya Wati resulted the purported cancellation of the mortgage and if so whether it should be rectified. The materials sought by the Defendant do not address this issue and the Plaintiff cannot be compelled to provide the said particulars. The summons for further and better particulars struck off. The Plaintiff is granted a cost of $500 assessed summarily to be paid by Defendants with in 21 days.
    

D. FINAL ORDERS

1. The Defendant's summons for further and better particulars struck off.
   
2. The Plaintiff is granted a cost of $500 as the cost of this application, to be paid by the Defendant within 21 days.
   

100. The matter to take normal cause.
     

Dated at Suva this 02nd day of August, 2012.

Master Deepthi Amaratunga
High Court, Suva