Chand v Kumar [2015] FJHC 43; HBC157.2010 (23 January 2015)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

Civil Action No. HBC 157 of 2010

BETWEEN:

LALLU GOPI CHAND and ARJUN CHAND aka BEN ARJUN CHAND both of Wailekutu, Lami, Fiji, Retired and Floor Supervisor, respectively.
Plaintiffs

AND:

DHARAM MATI KUMAR of Kalekana Settlement, Lami, Fiji, Domestic Duties.
1st Defendant

AND

REGISTRAR OF TITLES of Level 1, Suvavou House, Victoria Parade, Suva.
2nd Defendant

AND:

ATTORNEY GENERAL OF FIJI, pursuant to the Crown Proceedings Act.
3rd Defendant

Appearance : Ms P Preetika of M.A. Khan Esq, Barrister and Solicitors
Mr A Nand of Kohli & Singh, Barristers and Solicitors

Date of Judgment : 23rd January 2015

JUDGMENT

1. The Plaintiffs filed Writ of Summons on 18 May 2010 and sought the Orders stated in the Statement of Claim.

2. When the matter was taken up for trial on 11 August 2013, the Plaintiffs or their counsel/solicitor failed to appear in Court. Accordingly, the Plaintiffs' claim was struck out/dismissed and the Counter Claim was fixed for trial on 15 January 2014.

3. The Plaintiffs filed inter-partes Notice of Motion on 18 December 2013 to restore and reinstate the Plaintiffs' claim and the matter was taken up by the Learned Master on 18 February 2014 and directions were given to file the Affidavits by the parties.

4. Subsequently, the application for reinstatement was taken up before this court on 5 August 2014 and the Plaintiffs or their solicitor/counsel failed to appear in the court and accordingly, the inter-partes Motion for reinstatement was struck out and the 1st Defendant's Counter Claim was fixed for Trial on 6 October 2014.

5. On 15 August 2014, Notice of Motion was filed by the Plaintiffs to reinstate the matter to the cause list and the said Notice of Motion was taken up on 4 September 2014 and directions were given for the parties to file their Affidavits and the matter was taken up for hearing on 6 October 2014 and the parties agreed to dispose the matter was by written submissions.

6. I firstly, deal with the sequence of events that took place in this case.

6.1 This matter was taken up for trial on 7 February 2013 and evidence of the 1st named Plaintiff was led and the cross-examination concluded at 1:20pm. The matter could not be taken up in the afternoon since the court was closed due to the Tsunami warning and the matter was re-fixed for trial on 2 May 2013. Subsequently, the parties were informed by the Registry on 3 April 2013, the matter is fixed for trial on 2 May 2013 was vacated, and the same was to be mentioned on 5 April 2013 to fix a fresh date for trial. When the matter was mentioned on 5 April 2013, Ms S Maharaj with Mr P Niubalavu on instructions of M A Khan Esq Solicitors appeared for the Plaintiffs and Mr A Nand on instructions of Kohli & Singh Solicitors appeared for the 1st Defendant. The trial was re-fixed for 23 August 2013.

6.2 When the matter was taken up for trial on 23 August 2013, Mr R P Singh, Counsel for the 1st Defendant made an application to vacate the Trial (which was not opposed by the Plaintiffs) and accordingly, trial was re-fixed on 5 December 2013 subject to wastage cost of $300.

6.3 On 13 November 2013, the registry informed the solicitors for both parties that the trial fixed for 5 December 2013 was vacated and the matter will be mentioned on 15 November 2013 to fix a fresh trial date. Mr P Niubalavu appeared for the Plaintiffs and Mr A Nand appeared for the 1st Defendant and the trial was fixed for 11 December 2013.

6.4 When the matter was taken up for trial on 11 December 2013, no appearance was made on behalf of the Plaintiffs and the Plaintiff who gave evidence in the previous trial date was not present. Mr R P Singh appeared on behalf of the 1st Defendant; this court struck out/dismissed the claim of the Plaintiffs and fixed the trial on the Counter Claim made by the 1st Defendant to be taken up on 15 January 2014.

6.5 On 18 December 2013, inter-partes Motion was filed by the Plaintiffs to restore and reinstate the Plaintiffs' claim in terms of Order 35 Rule 1 and 2 of the High Court Rules, supported by the Affidavit dated 18 December 2013 sworn by Sangeetha Devi, Law Clerk of the Plaintiffs' solicitors.

6.6 The Inter-partes Motion filed on 18 December 2013 was taken up on 18 February 2014 before the Learned Master and directions were given to the parties to file their Affidavits and on 12 June 2014, the Learned Maser had directed the Registry to refer this matter to this court.

6.7 Counter Claim was taken up on 15 January 2014. The Plaintiffs informed the court that there was an application before the Master with regard to the reinstatement of this case and made an application to take up this matter after the order on reinstatement was made. Having heard both parties, this court made order to take up the trial on the Counter Claim subsequent to the order on the reinstatement. The Plaintiffs were ordered to pay summarily assessed cost of $1,000 to the 1st Defendant.

6.8 Subsequently, the matter was referred to this court and the court registry was directed to mention this case on 5 August 2014 and the Plaintiffs' or their counsel/solicitor was not present in the court on 5 August 2014 and due to the non appearance, the inter-partes Notice of Motion was struck out and the 1st Defendant's Counter Claim was re-fixed for trial on 6 October 2014.

6.9 On 15 August 2014, the Plaintiffs' solicitor filed Notice of Motion pursuant to Order 35 Rule 1 and 2 of the High Court Rules 1988 and the inherent jurisdiction of this court to reinstate the matter to the cause list supported by the Affidavit dated 15 August 2014 sworn by Sangetha Devi stating inter-alia:

(i) A fax was received from the registry that the matter listed for mention before this court on 5 August 2014 (I find the fax was sent on 1 August 2014) and due to an oversight the date was not entered in the Diary and Ms Prena Preetika, Senior Associate who had conduct of this matter was engaged in the Suva Magistrates Court was unaware of the date which resulted in the struck out of this action;

(ii) Further it was stated there will be no prejudice caused to the Plaintiff by reinstating this matter.

7. Analysis and Determination

7.1 Order 35 Rule 1 states:

"(1) If, when the trial of an action is called on, neither party appears, the action may be struck out of the list, without prejudice, however, to the restoration thereof, on the direction of the judge.

(2) If, when trial of an action is called on, one party does not appear, the judge may proceed with the trial of action or any counter claim in the absence of that party."

7.2 The present matter before this court falls within Order 35 Rule 1 not under Order 35 Rule 2,, the submission made by the counsel for the Defendant that the application to restore should be made within 7 days under Order 35 Rule 2 does not apply in this case. The reason being, that there had been no trial taken up by this court on the day in question. I conclude that the Order made to strike off the action was made under Order 35 Rule 1(1). There had been no trial proceeded on the Counter Claim, it was fixed for another date. Accordingly, there is no issue to consider as to whether application by the Plaintiffs was filed within 7 days. I am of the view that no time limit was fixed by Order 35 Rule 1 is to enable the court to use the discretion considering all the circumstances of the matter.

7.3 The only issues to be considered in this matter is as to whether the reasons for non appearance is justifiable or as to whether any prejudice will be caused to the Defendant by reinstating this matter to the cause list.

7.4 It is apparent by perusing Affidavits filed the non appearance was caused due to the negligence of the Solicitor. It was not only once but on two occasions since December 2013. The reasons set out in the 2 Affidavits filed by the Plaintiffs' solicitor's clerk, clearly shows the solicitor had failed in duty towards his client by not being diligent and has acted negligently. However, I note in this matter that the Plaintiff has given evidence on the first date of trial. The Plaintiffs' counsel states that when the matter was called on 11 December 2013, he had noted the date as 12 December 2013 as the date of continuation of the trial, which was a suitable date. The Plaintiffs' Affidavit dated 18 December 2013 stated the witnesses and the solicitor went to the court on 12/12/2013 and found that the case was called on 11/12/2013 and the Plaintiffs' claim was struck out.

7.5 Considering all the material before me, I conclude:

(a) This courts discretion to reinstate the matter should be exercised in favour of the Plaintiffs for the reason that the negligence was solely on the part of the Solicitor. The Plaintiffs should not suffer personally for the negligence of their solicitor. The solicitor had failed to exercise his duty of care towards its client and the Plaintiffs should not be punished in such circumstances;

(b) I also consider the evidence of the 1st named Plaintiff is partly heard and there is a Counter Claim by the Defendant to be heard and refusal to reinstate the matter will greatly prejudice the Plaintiffs, as such the discretion of the court should be exercised in favour of the Plaintiffs;

(c) I further conclude to avoid the prejudice caused to the 1st Defendant by delay in the proceedings due to the non appearance should be adequately compensated by awarding costs. There is no claim against the 2nd and 3rd Defendants and as such no order made on cost.

8. Accordingly, I make the following Orders:

(1) The matter is reinstated to the cause list and restored subject to the Plaintiffs paying summarily assessed costs of $2000.00 to the 1st Defendant within 30 days from the date of this Judgment.

(2) The Registry is directed to mention this matter to fix a fresh trial date.

Delivered at Suva this 23rd day of January 2015.

C. KOTIGALAGE
JUDGE