IN THE RESIDENT MAGISTRATE'S COURT
AT SUVA

Civil Case No: 199 of 2010

Between:

SANDALWOOD DEVELOPMENT LIMITED
Plaintiff

And:

RAM DUTT SHARMA f/n Umar Dutt Sharma t/a FRIENDLY FFOT WEAR
Defendant

For Plaintiff: Ms. Drova
For Defendant : Mr. Singh

RULING

1.	This case was called in open Court on 05th July 2010, and Writ of Summons was served on the Defendant on 03rd June 2010. However, defendant was not present in the Court. Upon the request of the Plaintiff's counsel, Judgment by Default entered against the defendant.

2.	On 05th July 2010, defendant filed a motion and affidavit for the purpose of setting aside the Judgment entered by default and on 19th July 2010, counsel for the Plaintiff moved time to file objections for the defendant's motion.

3.	On 05th August 2010, counsel for the plaintiff informed the Court that she is consenting for the motion of the defendant and both parties urged that the Court is duty bound to set aside the Judgment as they are consenting for the setting aside of the same.

Legal Background

4.	Magistrate's Court Act, Rule 3 Order XXXIV, confer powers to Magistrate in granting Judgment by Default. 

Rule 3, Order XXXIV

" if a defendant in any suit makes such default or failure the court, may give judgment by default against such defendant, or make such other order as to the court make seem just". 

" Provided that any judgment by default, may be set aside by the court upon such terms as to cost or otherwise as the court may think fit". 

5.	Powers vested upon a Magistrate under the above rule is discretionary both in granting and setting aside the Judgment entered by default. 

6.	Above-mentioned discretionary powers has to be exercised Judicially and I wish to be guided by my brother Magistrate Mr. Rajasinghe's ruling in Civil Case no: 406 of 2009 delivered on 03rd May 2010, which considered the same issue as this case.

7.	According to the Fry LJ's decision in Anlaby v Praetorious (1888) 20 Q.B.D.764, (which was followed in Subodh Kumar Mishra v Car Rental (Pacific) Ltd (1985) 31 FLR 49), "there is a strong distinction between setting aside a judgment for irregularity in which case the court has no discretion to refuse to set it aside and setting it aside where the judgment thought regular, has been obtained through some slip or error on the part of the defendant in which case the court has a discretion to impose terms as a condition of granting the defendant relief". 

8.	In Craig v Kanssen (1943) K.B.256, it had been held that "accordingly, if the judgment was obtained irregularly as is contended, the appellant was entitled to have it set aside ex debito justitiae, but if regularly, the court was obliged to act within the framework of the empowering provision". 

9.	The basic principles applicable to setting aside judgments in the exercise of court's discretion are set out in "Halsbury's Laws of England vol. 37, 4th Ed. Para 403. According to the above-mentioned paragraph "in the case of a regular judgment, it is an almost inflexible rule that the application must be supported by an affidavit of merits setting the facts showing that the defendant has a defence on the merits, for this purpose it is enough to show that there is an arguable case for a triable issue". (Pravin Gold Industries Ltd v The New India Assurance Company Ltd, (2003), FJHC 298, HBC0250d, 2002s. (4 February 2003). 

10.	According to the above-mentioned decided law and legal principles it is clear that the Magistrate's discretionary powers on the issue of setting aside a Judgment entered by default is subjected to following grounds.

i.	Was that said judgment by default an irregularly obtained? 

ii.	If not, is there an arguable case for a triable issue if the defense is allowed on the merits of the defense?

11.	It is therefore very clear that parties to a civil action are not in a position to force the Court to set aside a Judgment entered by default on the ground that the plaintiff is consenting for the setting aside. [Emphasis mine]. 

12.	According to the affidavit filed by the Defendant he was waiting outside the Court waiting for his case to be called. However, he had not heard his name being called. 

13.	In this instance the defendant was entirely at his fault for not being present in open Court. Parties of the cases are provided space to be seated in the open Court and it is expected from them to exercise due diligence to prevent inconvenience caused to the Court.

14.	Since, there is no question about the validity of the order made by the Court; I have no reason to set aside the Judgment by default entered on 05th July 2010, under the first ground mentioned above.

15.	In the proposed statement of defense filed by the defendant, it is mentioned that the defendant admits owing $10,000 to the plaintiff and sum claimed is excessive as he is in possession of evidence of payments he has already made to the plaintiff. 

16.	In this liquidated demand plaintiff had claimed for $22,900. 

17.	when considering the second ground mentioned in paragraph 10 of this ruling, I wish to be guided by the Gardner v Jay (1885)29,Ch.D.50. pg 58 (which was followed in Subodh Kumar Mishra v Car Rental (Pacific) Ltd (1985) 31 FLR 49), where it was held that "when a tribunal is invested by act of parliament or by rules with a discretion, without indication in the Act or Rules of the grounds upon which the discretion is to be exercised, it is a mistake to lay down any rules with a view to indicating the particular grooves in which the discretion should run". 

18.	Considering the major disparity in the plaintiff's claim and the amount admitted by the defendant, I rule that there is an arguable case for a triable issue if the defense is allowed on the merits of the defense.

19.	Accordingly, Judgment entered by this court by default on 05th July 2010 is set aside and defendant is ordered to file his statement of defense within 14 days.

On this Thursday the 26th day of August 2010.

Kaweendra Nanayakkara
Resident Magistrate, Suva.