Jang v Lala [2013] FJMC 307; Civil Action JDS271.2012 (21 August 2013)

IN THE FIRST CLASS MAGISTRATES' COURT
OF FIJI SUVA
CIVIL JURISDICTION

Civil Action No. JDS 271 of 2012

BETWEEN:

GEORGINA JANG of 14 Panapasa Road, Namadi HEIGHTS
PLAINTIFF

AND:

SHANKAR LALA OF 29 Derrick Street, Raiwaqa, Suva
DEFENDANT

RULING

1. Plaintiff filed Judgment Debtor Summons to enforce an award given by the Small Claim on 10/05/2012. The Defendant appeared in this Court on 22/04/2013 and informed that he wanted to appeal against that decision.
   
2. Both parties filed their affidavits and written submissions before my brother magistrate Mr. Charles Ratakele and when this was mentioned before me on 06/08/2013 parties wanted me to deliver the ruling.
   
3. In the submission filed by the defendant they were not appealing against the decision. The defendant wanted to set aside the default judgment given by the small claim tribunal in pursuant to Order XXX Rule 5 of the Magistrate Court Rules.
   

Order 30 Rule 5 states :

"Any judgment obtained against any party in the absence of such party may, on sufficient cause shown, be set aside by the court, upon such terms as may seem fit."

4. Order XXX of the Magistrate Court Rules deals with the non attendance of parties at hearing in the Court. Order XXX Rule 3 deals with the situation where the defendant failed to appear at the hearing. That rule provides:
   

"If the plaintiff appears, and the defendant does not appear or sufficiently excuse his absence, or neglects to answer when duly called, the court may, upon proof of service of the summons proceed to hear the cause and give judgment on the evidence adduced by the plaintiff, or may postpone the hearing of the cause and direct notice of such postponement to be given to the defendant."

5. This has to be read with the Order XXX Rule 5 which allows the Court to set aside a judgment given in the above manner.
   
6. Defendant as mentioned above wants this Court to set aside the award given by the Small Claim Tribunal. I believe this Court can't set aside an award under the Order XXX Rule 5. This is clear when reading the definition in the Magistrate Court Rules.
   
7. In the definition part of the Magistrate Court Rules the Court is defined only as Magistrate Court. It does not include a Small Claim Tribunal.
   
8. This is also clear when considered with other rules in Order 30. I find that this Court has no power to set aside a default judgment given by a Small Claim Tribunal under Order 30 rule 5. Therefore I strike out the defendant's application without cost. .
   
9. 28 days to appeal
   

21/08/2013

H.S.P.Somaratne
Resident Magistrate