Prasad v Chandra [2020] FJHC 599; HBC43.2018 (31 July 2020)

IN THE HIGH COURT OF FIJI AT SUVA

CIVIL JURISDICTION

Civil Action No. 43 of 2018

BETWEEN

VIJENDRA PRASAD of Suva Retired.

PLAINTIFF

AND

(1) KISHORE CHANDRA of Suva Retired.
(2) KIRAN CHANDRA of Suva Retired.
(3) POOJA PRANITA PRASAD aka POOJA CHANDRA of Los Angeles,

California USA as the Administratrix of the estate of

Kalyan Chandra.

(4) AMIKA DEVI CHAND of Los Angeles, California USA, Domestic duties as the

Executrix and Trustee of the estate of Dev Chand.

(5) VINAY CHANDRA of 1700 Lampman Road, Gold Hill OR7525, USA,

Retired as the sole Executor of the estate of Ram Chandra.

FIRST DEFENDANTS

AND

REGISTRAR OF TITLES

SECOND DEFENDANT

AND

THE ATORNEY GENERAL OF FIJI

THIRD DEFENDANT

Counsel : Mr. S. Chandra for the plaintiff

Mr. A. Nand for the 1^st Defendants

Ms. M. Motufaga for the 2^nd Defendant

Ms. K. Singh for the intended 4^th Defendant

Date of Hearing : 06^th July 2020

Date of Ruling : 31^st July 2020

RULING

(On the application to add a party)

[1] The plaintiff filed the writ of summons on 21^st February, 2018 seeking the following reliefs:

1. An order for extension of Caveat No. 833892 beyond 21 days;
2. An order under section 168 of Land Transfer Act 1971 directing the second defendant to accept an application by plaintiff for adverse possession under section 79.
3. In the alternative an order that the plaintiff be granted an adverse possession of the part of the land i.e. 5 acres or an order that a fair and equitable compensation is to be assessed and paid to the plaintiff by the defendants before the vacation of the land.
4. Costs of the action.

[2] On 18^th February 2020 the plaintiff filed summons to add “Realeader Company Pte Ltd” as to party to these proceedings on the basis that after the amended statement of claim was filed and served the property in question (CT 5075) has been transferred by the 1^st defendant to the party sought to be added.

[3] Order 15 rule 6(6) of the High Court Rules 1988 provides:

The addition or substitution of a new party shall be treated as necessary for the purposes of paragraph (5) (a) nd only if,y if, the Court is satisfied that-

(a) the new party is a necessary party to the action in that property is vested in him at law or in equity and the plaintiff's claim in respect of an equitable interest in that property is liable to be defeated unless the new party is joined, or
(b) the relevant cause of action is vested in the new party and the plaintiff jointly but not severally, or
(c) the new party is the Attorney-General and the proceedings should have been brought by relator proceedings in his name, or
(d) the new party is a company in which the plaintiff is a shareholder and on whose behalf the plaintiff is suing to enforce a right vested in the company, or
(e) the new party is sued jointly with the defendant and is not also liable severally with him and failure to join the new party might render the claim unenforceable.

[4] The plaintiff in the writ of summons sought the following orders against the defendants:

1. An order for extension of Caveat No. 833892 beyond 21 days;
2. An order under section 168 of the Land transfer Act directing the 2^nd defendant to accept an application by plaintiff for adverse possession under section 79.
3. Alternatively; an order that the plaintiff be granted an adverse possession of the part of the land i.e. 5 acres or an order that a fair and equitable compensation to be assessed and paid to the plaintiff by the defendant before vacation of the land.
4. Costs of the action.

[5] On the question of adding a party to an action both parties relied on the decision in Lucy v W.T. Henleys Telegraph Works Co Ltd Imperial Chemical Industries Ltd [1970] 1 QB 393 where Lord Denning said:

It gives the court power to add a person as a defendant if his presence is necessary to ensure all matters in dispute are effectively and completely determined. This rule operates in congeniality with the general proposition of law that multiplicity of actions arising out of the same fact amounts to abuse of the process of the court.

[6] The 1^st, 2^nd and 3^rd defendants did not object to this application and they only sought costs. The learned counsel for the party sought to be added (the intended 4^th defendant) that he is not answerable to the plaintiff as he is a bona fide purchaser of the property and not in a position to determine any purported arrangements and questions arising out of the claims that the plaintiff has in relation to the land and/or any relief sought by the plaintiff.

[7] The question here is, if the plaintiff obtains a judgment in his favour will he be able to reap the fruits of the judgment since the party sought to be added will not be bound by the decision of the court if he is not added. Only the parties to a proceeding before court are bound by its decisions. If the party sought to be added is not added as a party the plaintiff, if successful, will have to file another action against him which will be resulted in multiplicity of actions.

[8] The plaintiff instituted this action on 21^st February 2018 and the property was transferred to the party sought to be added on 10^th September 2020. The plaintiff made the present application to add the current owner of the property on 18^th February 2020 after almost 18 months after the property was transferred.

ORDERS

1. It is ordered that the intended 4^th defendant be joined as a party to the action.
2. There will be no order for costs.
   

Lyone Seneviratne

JUDGE

31^st July 2020