Khan v Narayan [2023] FJMC 37; Civil Action 07 of 2021 (9 June 2023)

IN THE MAGISTRATE’S COURT AT SIGATOKA

CIVIL DIVISION

Civil Action No. 07 of 2021

BETWEEN: JALAL KHAN

PLAINTIFF

AND: ZARNAL ANAND NARAYAN

DEFENDANT

For the Plaintiff: Ms. M. Pillai

For the Defendant: In person

RULING ON MOTION FOR REINSTATEMENT

Introduction

1. This civil cause was struck out on 10^th March 2023 after the Plaintiff did not appear to conduct proceedings.
2. This is the Plaintiff’s application for reinstatement of proceedings by way of Notice of Motion and Supporting Affidavit of Jalal Khan filed on 11^th April 2023. The application is filed pursuant to Order 26 Part II Rule 8 of the Magistrates Court Rules.
3. The Defendant filed his Affidavit in Response on 8^th May 2023.
4. Both parties have made verbal submissions on their respective positions at the Hearing of the Motion on 2^nd June 2023.

The Analysis

5. Order 30 Rule 6 of the Magistrates Court Rules states:

“Any civil cause struck out may, by leave of the court, be replaced on the cause list, on such terms as toe the court may seem fit.”

6. I also adopt the approach in the persuasive authority of Mere Vuniwaqa v Apolosa Tacaqe [2012] FJMC 308 where the Court stated:

“Reinstatement is a discretionary matter of this court.”

7. This is the first non-appearance of the Plaintiff in this matter. I note the reason relied upon in that he was at the back of the court house when the matter was called thus why he did not hear the matter. Plaintiff also relies on their immediate filing of this Motion to show that they are genuine about the matter.
8. The Defendant states that he was present and the matter was called after 9am, 9.50am to be particular. The Defendant avers that the Plaintiff ought to have been present and as a result of his absence in Court, the Defendant has incurred costs.
9. I have considered the arguments for against this Motion for Reinstatement. In the circumstances, I will grant the Motion but with costs.
   

The Courts Finding

10. The Notice of Motion filed by the Plaintiff on 11^th April 2023 is hereby granted. Matter reinstated.
11. A Continuation of Hearing date will be scheduled for parties to continue conduct of the same.
12. The Plaintiff to pay Costs, assessed at $200, to the Defendant in 21s days from today.

So ordered.

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J Daurewa

Resident Magistrate

9^th June 2023