Wati v Somari [1979] FJSC 17; Civil Appeal 15 of 1979 (3 August 1979)

IN THE SUPREME COURT OF FIJI
(WESTERN DIVISION)
AT LAUTOKA
APPELATE JURISDICTION

CIVIL APPEAL No. 15 of 1979

BETWEEN

PRAKASH WATI
w/o Ram Autar
Appellant

AND

SOMARI
d/o Ram Autar
Respondent

Mr. C. Gordon, Counsel for the Appellant
Mr. S. Prasad, Counsel for the Respondent

JUDGMENT

This is a defendant's application for leave to appeal out of time. The title indicates that it is probably against a judgment or order in a magistrate's court. However, the summons does not indicate what judgment or order is appealed against.

An affidavit by the defendant's solicitor supporting the application gives a garbled and imprecise account of some proceedings in a magistrate's court in which a default judgment was set aside and formal pleadings ordered. An affidavit from the defendant does not greatly clarify matters and no copy of the pleadings or of the applications made in the magistrate's court were annexed nor were there any copies of the record maintained by the magistrate nor of his orders.

Some light was shed on the situation the affidavit of the plaintiff's solicitor.

Although I heard submissions I was not too sure what had occurred in the magistrate's court and directed that copies of the magistrate's record be filed within 48 hours.

Fortunately the learned magistrate's record was well maintained and the orders he made from time to time review what had gone before and enabled me to obtain a picture which the defendant's solicitor had failed to do.

I have now gleaned that the plaintiff is the widow and testatrix of a moneylender although the writ originally filed does not reveal that it related to a money lending transaction. It was filed on 27/7/78 and claims $500 advanced under a Bill of Sale on 8/10/69 and interest at 12% per annum amounting to $1025.00. The writ was returnable on 16.8.78.

The defendant did not deliver any notice of intention to defend and accordingly the plaintiff entered judgment, by way of default under the provisions of O.VI r. 10 of the Magistrate's Courts' Rules as amended by L.N. 73 of 72, 16.8.78.

Thereupon the defendant applied by summons dated 21.8.78 to set aside the default judgment for reasons set out in an affidavit by Mr. Kalyan (Solicitor) who stated that on 16.8.78 he was instructed to deputise for Messrs. Shankar & Co. (Solicitors) and thought he was representing the plaintiff whereas in fact he should have been appearing for the defendant. Annexed to that affidavit was the proposed defence alleging payment in full, pleading lack of territorial jurisdiction in the magistrate and that the action is barred by lapse/of time under the Limitation Act and failure on the deceased moneylender's part to comply with the Money Lenders' Ordinance. The learned magistrate set aside the default judgment on 29/8/78 and ordered formal pleadings to be filed; the statement of claim within 21 days and the statement of defence within a further 14 days.

The pleadings would, under that order have closed on 3rd of October but by that date no statement of defence had been filed. The only suggestion of a defence was the proposed defence annexed to Mr. Kalyan's affidavit (supra). More than 2 weeks after a statement of defence should have been filed the defendant sought and obtained leave on 18/10/78 to file a defence within a further 7 days i.e. on or before 25/10/78 and the case was to be mentioned on 8/11/78. Once again the defendant failed to file a defence. On the mention date, i.e. 8/11/78, the defendant again sought leave to file her defence out of time but judgment had been entered in default of a defence on 7/11/78. There was some argument before the magistrate in the course of which the defendant argued that judgement should not have been entered by default because there was a defence in the record and referred to the proposed defence which had been attached to Mr. Kalyan's affidavit. As I have said that defence was never filed. The magistrate adjourned to 15/11/78 on which date he held that the proposed defence had not been filed as a defence proper and he refused to accept a defence which was presumably being tendered. An acceptance of the proffered defence would have meant setting aside for the second time a judgment entered for default of a defence.

On 4/12/78 the defendant moved the court by a summons returnable on 13th December for the second default judgment to be set aside. It was accompanied by the defendant's affidavit setting out her proposed defence. The learned magistrate pointed out that he had already refused a similar application in his above ruling on 15/11/78 and the application was rejected.

No further step was taken by the defendant until 5th June 1979 when a summons issued requesting leave to appeal out of time against the learned magistrate's refusal to set aside the default judgment. It appears that this step was prompted because the plaintiff, as judgment creditor had commenced execution proceedings and the summons requests a stay of execution pending the outcome of an appeal. The learned magistrate delivered his ruling on the application on 22/6/79. He stated that under O.XXXVII r.1 of the Magistrate's Court Rules the defendant had to give notice within 7 days of an intention to appeal against the magistrate's refusal on 5/11/78 to set aside the default judgment. He said that although under O.XXXVII r.4 he had power to extend the time for filing grounds of appeal there was no power to extend the 7 days in which notice of intention to appeal should be given.

Nowhere in the affidavits presented to the learned magistrate or filed in the Supreme Court, has the defendant endeavoured to explain why the appeal was not filed within the 30 days required under O.XXXVII r.3. The magistrate's refusal to set aside the default judgment was made on 15/11/78 and no step was taken to appeal against it until June 1979. One would expect to receive some satisfactory explanation for the delay but none has been forthcoming.

However, there is an undertaking to pay the judgment debt into Court pending the outcome if this application for leave to appeal out of time is successful.

I would mention that the learned magistrate in stating that he had no power to extend the 7 day period for giving notice of intention to appeal overlooked the general provisions of O.2 r.2 which enables him to enlarge the time fixed for taking any step. Had he recollected this provision he may have enlarged the time.

The defendant proposes a reasonable defence and I think that one should not be barred from testing its merits because it was not filed in time if no injustice is likely to be caused to the plaintiff. Accordingly I grant leave to file the defendant's appeal out of time.

Subject to any submission which the parties may wish to make I would treat this application as the appeal and allow the defendant to file her defence and contest the suit on the condition that she pays the costs of this application which I fix at $35.00, to the plaintiff within 7 days plus the sum of $65.00 to cover the plaintiff's costs to date in the Court below; that the amount of $1025 claimed be paid into the magistrate's court within 7 days plus a further 12% interest on the capital sum of $500.00 from 8.7.78 to 8.8.79 bringing the total to $1085.00; plus a further $100.00 as security for the plaintiff's further costs in the court below.

The defence to be filed within 14 days of the date hereof.

(Sgd.) J.T. Williams
JUDGE

LAUTOKA,
3 August, 1979.

N.B.

Parties concur in above order.

(Sgd.) J.T. Williams
JUDGE