Singh v Singh [2016] FJHC 1060; HBC43.2011 (22 November 2016)

THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

Civil Action No. HBC 43 of 2011

BETWEEN : DHIRENDRA SINGH

PLAINTIFF

AND : ATENDRA SINGH

DEFENDANT

BEFORE: Master Vishwa Datt Sharma

COUNSELS: Ms. Vani Tokavou - for the Plaintiff

Mr. O’Driscoll - for the Defendant

Date of Hearing: 15^th August, 2016

Date of Ruling: 22^nd November, 2016 @ 11.30 am

RULING

(Application for leave to reinstate the Plaintiff’s application pursuant to the inherent jurisdiction of the Honourable Court)

INTRODUCTION

1. The Plaintiff filed this Summons and sought for an order-
   
   • (a) To reinstate the Plaintiff’s action on the grounds set out in the affidavits filed in Support of this Summons
     
2. The Affidavit in Support was filed which was deposed by Paula Gusunivosa Gade in his capacity as a Solicitor.
   

BACKGROUND

3. The Plaintiff filed his Writ of Summons on or about 15^th February, 2011 claiming Breach of Contract on the part of the Defendant.
   
4. The Writ was served and the Defendant filed his acknowledgement of Service on 28^th April, 2011 and subsequently the Statement of Defence was filed on 25^th May, 2011.
   
5. The particulars listed under paragraph 16 of the Statement of Claim were denied by the Defendant and the Plaintiff was put to strict proof thereof. Further, the Defendant stated that any debt under the Mortgage was owed not to the Plaintiff but to another, if at all.
   
6. The Plaintiff did not file any Reply to Defence as was required of him in terms of the Rules in order to complete the Pleadings in this Writ Action. No action was taken by the Plaintiff after the Defendant filed his Statement of Defence on 25^th May, 2011.
   

PLAINTIFF’S CASE

7. The Plaintiff relies on his Affidavit in Support and the written submissions filed herein.
   
8. In summary, the Plaintiff’s case is as follows-
   
   • (a) That On 19^th April, 2016, they filed a Notice of Intention to proceed which was accepted by the Court Registry;
   • (b) That on the same date, they were advised to file the Notice of Motion- Ex Parte for the Renewal of the Writ and the Affidavit in Support after the expiry of 30 days of Notice to Proceed;
   • (c) That after the expiry of 30 days their clerk went to file the Notice of Motion-Ex Parte and the Affidavit in Support. This was refused for filing on the basis that the matter was struck out in 2013.The Registry was then questioned why they had accepted the filing of the Notice of Intention to Proceed in the First place.
   • (d) The Plaintiff’s contention is that they were never served with a Notice to Strike Out or even informed about this matter being struck out.
   • (e) That it would be unjust and unreasonable for this Honorable Court to accept the striking out application without hearing their explanation as to why this matter was not proceeded with in a timely manner. The Plaintiff has given explanation on why he did not proceed with the action as the Defendant named in this action died, hence he waited for the issuance of a Probate in order to amend his claim.
   • (f) The Plaintiff seeks reinstatement accordingly.
     

DEFENDANT’S CASE

9. The Defendant submitted that the matter was struck out by Honourable Mr Justice Amaratunga and the Master doesn’t have the Jurisdiction to override the Judge’s decision.
   
10. The Counsel representing the Defendant further added that he will not file any Response to the Plaintiff’s application and that the Defendant is now a Deceased.
    
11. He sought for costs.
    

THE LAW

12. The application seeking reinstatement of the Plaintiff’s action is made pursuant to the Inherent Jurisdiction of the High Court.
    
13. It will be noted that the Notice pursuant to Order 25 Rule 9 and Order 3 Rule 5 of the High Court Rules was dealt with by this Court on 18^th January, 2013.
    

ANALYSIS and DETERMINATION

14. The issue that this Court needs to determine is ‘Whether the Plaintiff’s Writ of Summons together with the Statement of Claim struck out in terms of Order 25 Rule 9 application lies within Master’s jurisdiction should be reinstated to the List?

Whether the Jurisdiction to reinstate the matter struck out in terms of Order 25 Rule 9 application lies within Master’s Jurisdiction?

15. The Plaintiff’s contention is that this matter was struck out sometimes in 2013 without the knowledge of the Plaintiff. That the Defendant passed away on or about 09^th July, 2012 and on or about 02^nd February, 2013, the Plaintiff Solicitors followed up on whether Probate or Letters of Administration in the Estate of Atendra Singh was granted. On or about 18^th March, 2013, the Solicitors for the Estate of Atendra Singh advised him that the Probate was still pending. Later advised by email on 10^th September, 2013, that the Probate was issued.
    
16. It will be noted from the Court records that the Plaintiff was represented by Counsel Mr. Amrit Chand and Mr. O’Driscoll represented the Defendant. The Court was informed that only a Statement of Defence was filed and further that the Defendant was now a Deceased. The Court then proceeded to strike out the matter in terms of Order 25 Rule 9 Notice for want of prosecution.
    
17. Now the Plaintiff is asking this Court to Reinstate the Matter to the List and relies on his Affidavit in Support and the Written Submissions filed in Court.
    
18. After a careful perusal of the Court record and the Plaintiff’s Affidavit in Support together with the Written Submissions filed herein, I find that the Plaintiff’s Substantive Action was ‘Struck Out’ on the Court’s Notice issued in pursuance to Order 25 Rule 9 application for ‘Want of Prosecution”.
    
19. It is a Fundamental Law that after a matter is struck out for either non-compliance of peremptory order or for want of prosecution the appropriate remedy for the party whose action has been struck out is to Appeal the Decision and not apply for reinstatement. I now make references to the following relevant Case Authorities to support this-
    
    • (i) Avinesh Ashwain Prasad –v- Fiji Development Bank, Civil Action No. 198 of 2010.
      

This was a Decision of the honourable Mr. Justice Kotigalage dated the 03^rd April, 2013.

In this matter, the Plaintiff’s Action was struck out for non-compliance of unless orders.

The Plaintiff then sought to have his action reinstated. Relying on the Court of Appeal authority of Trade Air Engineering –v- Taga, Civil Action No, and ABU 0062 of 2006. Honourable Mr. Justice Kotigalage ruled that in such circumstances the appropriate procedure is to Appeal the Decision of the Striking Out the matter and not to seek reinstatement.

20. For the aforesaid Rational, the Jurisdiction to reinstate the Struck Out matter for want of prosecution in terms of Order 25 Rule 9 Notice does not lie with the Master of the High Court. The party affected must Appeal the Decision and not seek reinstatement of the same.
    
21. Therefore, I proceed to make the following orders-
    

ORDERS

(i) The Plaintiff’s Summons to reinstate the Writ of Summons and the Statement of Claim is hereby Struck Out.
(ii) The Plaintiff to pay the Defendant Costs summarily assessed at $1,000 within 14 days.
(iii) The High Court Civil Registry not to accept further Applications and documentations in this Case until the Order made at (ii) above has been complied with.

Dated at Suva this 22^nd Day of November, 2016

...........................................................
VISHWA DATT SHARMA

Master of High Court, Suva

cc: Diven Prasad Lawyers for the Plaintiff

O’Driscoll & Co for the Defendant