Mohammed v Sharma [2014] FJHC 37; HBC112.2007 (6 February 2014)

IN THE HIGH COURT OF THE REPUBLIC OF FIJI
AT LAUTOKA
WESTERN DIVISION

[CIVIL JURISDICTION]

Civil Action No. HBC 112 of 2007

BETWEEN:

TASWIK MOHAMMED
of Ravi Ravi, Ba, Technician
1st Plaintiff

AND:

TIRULOK MUNI NADAN NAIDU
of Nadovi, Nadi, Technician
2nd Plaintiff

AND:

SUBHAS CHANDRA SHARMA
trading as SHARMA MUSIC CENTRE of Nadi Town.
1st Defendant

AND:

VIJENDRA MANI
Driver/Technician
2nd Defendant

AND:

SUBHAS CHANDRA SHARMA trading as
SHARMA MUSIC CENTRE of Nadi Town
3rd Party

APPEARANCES

Mr Chaudhary for Messrs Chaudhary & Associates for the 1st Plaintiff
Mr Padarath for the 1st Defendant & 3rd Party
Ms Latianara for the 2nd Defendant
Date of Ruling: 6 February 2013

EXTEMPORE RULING

[1] When the matter came up before me today for review of PTCM between the 2nd Defendant and the 3rd Party and PTC between the Plaintiff and the 2nd Defendant, Mr. Chaudhary, counsel for the Plaintiff made two applications, namely:

i) That the 3rd Party proceedings be struck out as they have failed to file their PTCM within final 14 days allowed by the court on the last occasion with unless order that the 3rd Party proceedings will be struck out if the PTCM not filed within the final 14 days.

ii) PTC between the Plaintiff and the 2nd Defendant be dispensed with.

[2] Ms. Litianara, appearing on instruction as usual sought further 21 days to finalize PTCM between the 2nd Defendant and the 3rd Party. It is worthy of note that she adduced no reason or explanation for seeking further time.

[3] Mr. Chaudhary objected to further time being granted on the ground that last occasion the court granted final 14 days for them to complete their PTCM and this has delayed the Plaintiffs' action to progress.

[4] I note that the Plaintiff has filed his writ of summons in April 2007 and the PTC between the parties is due since 14 November 2011. Only PTCM between the Plaintiffs and 1st Defendant has been filed so far. That too, was filed on 4 December 2013.

[5] The PTC has been a hindrance for the Plaintiffs to progress their case further.

[6] The 2nd Defendant's application seeking further time to finalize PTCM between them and the 3rd Party after getting a final date on the last occasion with an unless order appears to be unreasonable and unwarranted. The 2nd Defendant must have finalized and filed their PTC by 10 December 2013 pursuant to order made by the Court on 26 November 2013. They were not mindful of the Court order. No attempt at least to arrange PTC and finalize the PTCM was made by the 2nd Defendant. The 2nd Defendant failed to comply with the unless order made by the Court on 26 November 2013. This clearly shows the complete lack of interest on the part of the 2nd Defendant. There has been non-compliance with the direction of the Court by the 2nd Defendant. No reason or explanation was forthcoming as to why they were unable to comply with the Court's direction. This attitude cannot be taken lightly. The directions of Court must be obeyed. A party cannot apply for extension of time to complete some procedure as of right. The Court has discretion to grant extension of time to complete a step in appropriate cases. A party in breach cannot have an unqualified right to an extension of time which would defeat the purpose of the rules which provide a time table for the conduct of litigation.

[7] The proceedings are delayed by the PTC greatly. The PTC is due since November 2011. There has been no progress to PTC and to finalize PTCM between the 2nd Defendant and the Plaintiff and the 3rd Party.

[8] Applications made by Mr Chaudhary today appear to be reasonable and appropriate in the circumstances of the case.

[9] For all these reasons, I dismiss and struck out the 3rd Party proceedings. Further, I make order that PTC between the Plaintiffs and the 2nd Defendant to be dispensed with and allow the Plaintiff to file copy pleadings within 21 days.

ORDERS

1. The 3rd Party proceedings are dismissed and struck out;
   
2. PTC between the Plaintiff and the 2nd Defendant is dispensed with; and
   
3. The Plaintiff has 21 days to file and serve copy pleadings.
   
4. The Matter is now adjourned to 10 March 2014 to check on copy pleadings.
   

M H Mohamed Ajmeer
Acting Master of the High Court

06/02/14
At Lautoka